i 






Aits 




Author. 



Title 



Class Imprint 



Book 



16—30299-1 GPO 






TO THE REGENTS OF THE UNIVERSITY OF THE 
STATE OF NEWTORK, 

The undersigned, in behalf of the trustees of Union College, 

Respectfully Reports : 

That it having been frequently stated of late, both in Schenectady 
and elsewhere, that a very large amount of money received under 
the grants made to Union College remained unaccounted for; that the 
board of trustees had held meetings in Albany; and that they had 
elected a trustee who resided out of the State, which acts are both 
contrary to law; that in conformity to the report of a ccmmitte made 
at the late meeting in Albany, changes in the Professorships and in 
the Professors were supposed to be in contemplation, that would not 
be submitted to. From these facts, and from the fact that the trus- 
tees have been distinctly forewarned, that unless some of the imputed 
changes in contemplation were abandoned by the trustees, the au- 
thority of the Regents and of the Legislature would be brought to 
bear upon them in that behalf : From these facts, and the further 
fact, that in fulfilment of this forewarning, repeated and unusual 
calls have been made by the Regents and the House of Assembly, 
requiring an account in detail of certain fiscal transactions for the 
last twenty-five years; in one of which calls from the Assembly, the 
mover, (as reported in the Argus,) stated " that this College had 
never made any report conformable to law, and always accompanied 
the brief report made to the Regents with a protest against the power 
of the Regents to require it, or their obligation to make it:" from 
these facts it has seemed reasonable to infer that these unusual calls 
have been made in consequence of errors imputed to the trustees, and 
that they are intended to secure the correction of the same. 

But however originating and to whatever end directed, it is ad- 
mitted that the imputations have been of such a nature as fully to 
justify the calls made by the Legislature on the one hand, and to 
require a full and frank response from the trustees on the other. 

1 



As these imputed fiscal delinquencies of the trustees in their repc 
to the Regents and to the Legislature, are coupled together in the 
call from the Assembly, a common answer has been so framed as to 
supply said imputed delinquencies in former reports to both; which 
answer not only contains the reasons which have governed the trus- 
tees during the past, but also their views and wishes for the future. 

And the same having been sent to the Assembly is now embodied 
ill this report to the Regents. 

As to the informal meetings of the trustees in Albany, the under- 
signed has only to say, that they have, it is believed occurred only 
when the design of the meetings was merely to collect the individual 
opinions of those present on questions that required no immediate ac- 
tion; that these meetings were appointed in Albany for the conve- 
nience of the ex officio trustees, and always with a full understanding 
that the decisions made there would have no legal validity until the 
same were received and ratified at a subsequent regular meeting held 
in Schenectady. 

As to the election of a trustee out of the State, the trustees ap- 
pear to have acted in conformity to the usage in other colleges, and 
nothing in their charter inhibits a conformity to such usage. During 
the reduction of the number of the trustees, in conformity to the act 
of March 30, 1805, removal from the State would, it is admitted, 
create a vacancy, till the entire reduction contemplated took place, 
because the board of trustees had filed their con&ent in the Secreta- 
ry's office that it should be so. But as to filling vacancies, when 
vacancies were allowed by law to be filled, they are not aware that 
any reason, legal or otherwise, exists, why they should not be filled, 
when expedient, from another State. 

As to the vacating and filling of professorships, the undersigned 
knows nothing more than what is contained in the minutes of the 
board, and as it is believed that here, as elsewhere, the trustees have 
nothing to conceal from the Regents in relation to their acts, he has 
copied into this repoit the only acts of the trustees in relation to that 
subject, (and those informal,) of which he has any knowledge, and 
which consist in the adoption of the report of a committee, which 
report is in the following words: 

" The committee to whom was referred the consideration of a change 
in the course of' study to be pursued; what changes may be made 
with advantage in the existing professorships, what professorships 






may be abolished, and what new ones instituted in their places; what 
changes may properly be made in the number and details of the ex- 
isting course of studies in order the better to adapt the same to the 
existing wants of the community; the expediency of adapting the 
diplomas of the institution to a more specific description of the at- 
tainments of the students in particular branches of science; what 
; provision ought to be made for any officers of the college, who, after 
years of faithful service, may, from the infirmities of age or ill health, 
be constrained to retire from the more laborious duties of their sta- 
tions; and to report the name of a candidate duly qualified for the 
Professorship of Moral Philosophy, and who shall be also qualified to 
discharge the duties of Vice-President of the institution, and the 
names of persons deemed most competent to fill the other professor- 
ships recommended by them to be established, do respectfully 

" REPORT; 

In part, that they have had the several subjects referred to them 
under consideration, and have had two special meetings of the com- 
mittee in respect to the same, but they are not yet prepared to report 
in full. Your committee are strongly impressed with the conviction 
that, some important changes may advantageously be made in the 
course of collegiate instruction, and in the principles upon which the 
honors of the institution shall be conferred. The subject is one of 
much difficulty, and the committee are not prepared at this time to 
state in detail all the alterations which it may be proper ultimately 
for the board of trustees to adopt. But they are satisfied that a more 
liberal provision ought to be made for instruction in the application 
of science to the useful arts; in Civil and Topographical Engineer- 
ing; in the French and other modern languages; in Ancient and 
Modern History, and in the elements of general Jurisprudence. They 
are also of the opinion that such latitude of choice ought to be al- 
lowed to students in the departments of study which they shall pur- 
sue, that the honors of the institution may be awarded in some form 
to every young man who shall distinguish himself by persevering and 
successful devotion to any liberal branch of knowledge. 

" The present state of the funds of the college are such that it is 
impossible immediately to provide for the best instruction in all the 
different branches of science which your committee think should ulti- 
mately be pursued in the institution, and of course all the professor- 
ships which they propose to establish cannot be filled at present. 
Although they concur in the recommendation of the Regents of the 
University, that the study of the French and other modern languages 



should, in the present state of the world, be pursued in all our col- 
leges as a part of the regular course of instruction, your committee 
find that the funds will not. enable the trustees, at present, to commit 
that department of science to the charge of a Professor. Your com- 
mittee recommend an entire change of all the proiessorships in the 
institution, from and after the next commencement, and that the five 
first of the professorships hereinafter recommended be filled by the 
trustees by election at the annual meeting of the board the day pre- 
ceding such commencement; that such proiessorships be filled, either 
from the present numbers of the faculty, or from other persons, as the 
trustees shall deem most conducive to the interests of the institution; 
but that the trustees give due and respectful attention to the claims 
of the gentlemen who are the incumbents of the professorships which 
are to be abolished at that time. And as the present Professor of the 
Greek and Latin languages, on account of his advanced age, may 
not desire to be elected :o any chair under the new organization, 
your committee, in consideration of his long and faithful services, 
recommend that until he can be otherwise provided for, or the fur- 
ther order of the board, he be requested to accept the title of Eme- 
ritus Professor of ancient languages, and occupy the house where he 
now resides and receive the annual sum of $500 in quarterly pay- 
ments.- 

" In conformity to these views, your committee recommend the adop- 
tion of the following resolutions : 

Resolved, That from and after the next commencement, all the 
professorships in the college as at present established, be abolished, 
and that the following organization be substituted therefor: 

" The president of the college shall not be charged with instructing 
in any particular branch of science as the professor thereof, but he 
shall have the general superintendence of all the professorships, and 
of the several teachers in the college. He shall also instruct any of 
the classes or sections of classes in such branches of science as he 
shall from time to time deem most for the interests of the institu- 
tion. 

" There shall be a professor of moral philosophy and rhetoric, who 
shall act as vice-president, and who, under the president, shall have 
the general superintendence of the police of the college. 

A Professor of Ancient Languages and Literature. 
A Professor of Mathematics, pure and applied. 



A Professor of Mechanics, practical and theoretical. 
A Professor of Natural History and Chemistry. 

A Professor of the French and other modern languages, and Lite- 
rature. 

A Professor of Agricultural Chemistry and Chemistry as applied 
to the Arts. 

A Professor of Civil and Topographic Engineering. - N 

A Professor of Ancient History and Philosophy. 

A Professor of Modern History. 

A Professor of Law and Civil Polity. 

A Professor of Anatomy and Physiology. 

" Resolved, That the several professors, in addition to the appropri- 
ate duties of their respective professorships, be charged with instruc- 
ting in such other branches of literature as may from time to time be 
assigned to them by the president of the college or the board of 
trustees. 

(Signed) R. H. WALWORTH, 

Chairman" 



To return to the imputed fiscal delinquencies, the same are respon- 
ded to, as stated in the report of the trustees to the Legislature in 



the words following: 



TO THE HONORABLE, THE ASSEMBLY OF THE STATE 

OF NEW-YORK. 

The undersigned respectfully states that a copy of the resolution of 
the house, passed March 12th 1849, in the words following: 

a Resolved, That the Trustees of Union College, be, and they are 
hereby required to report, forthwith, to this House, a true statement 
of all the property owned by said college. That they show in said 
report^ in what manner the funds of said college are invested, and 
what changes in the investment thereof have been made within the 
last ten years, specifying the same particularly; what amount of stocks 
are held by said college and in what companies; what amount of 
money is loaned on the security of mortgages ; to whom and in what 
sums; what other securities are held by said college, specifying the 
character and the amount loaned on each security; and that they 
cause such report to be verified by the oath of their President and 
Treasurer of said college." 

And also the subsequent resolution passed March 21st, 1849, ex- 
tending that requirement to the period of twenty-five years, came to 
hand in due course of mail. 

Immediately on the receipt of the aforesaid resolutions, the presi- 
dent of Union College, on his own responsibility without waiting for 
a meeting of the board of trustees, which could not be convened un- 
der twenty-one days, directed the undersigned forthwith to commence 
the making out of a schedule of all the grants heretofore made to Un- 
ion College, and of the manner in which the same has been invested ; 
of the losses which have been sustained; of the present state of each 
of the permanent separate fund accounts; of the revenue arising from 
each, and the manner in which each has been applied ; also of the 
changes which have taken place in the investment of each, and to ac- 
company the same with as much minuteness of detail as possible, 



4 [Assembly 

considering the variety of subjects to which the enquiries of the Assem- 
bly relate, the many years to which they extend, and the shortness of 
the time allowed for making the same. 

In conformity to the above direction the undersigned proceeded to 
examine the books (22 in number) containing the fiscal transactions 
during the last twenty-five years; and he has completed the duty as- 
signed him with as much despatch and as great detail, as the claims of 
other duties on his time would allow. And he now presents to the 
Assembly the result of his labors, in the following schedules and the 
remarks accompanying the same. 



SCHEDULE I 

Containing a Statement of all the Acts in which grants 
have been made to Union College, together with the 
amounts, irrespective of interest, granted and received. 

1. By the act of April 9, 1795, for the purchase of 

Library and apparatus, $3,750 00 

2. By the act of April 11, 1796, for the erection of build- 

ing, 10,000 00 

3. By the act of March 30, 1797, seven hundred and fifty 

dollars a year for two years, for the support of a 
Professor, which sum was wholly applied to that 
purpose, and nothing therefore remained to be ac- 
counted for. 

4. By section 1 of the act of March 7, 1800, for the 

completion of the College edifice, 10,000 00 

5. By section 3 of same act, ten military lots were grant- 

ed, of 550 acres each, for the support of the Presi- 
dent and Professors, 43,483 93 

6. By the act of April 8, 1801, and of April 3, 1802, 

arising from the Garrison lands, by the Regents,. . . 9,378 20 

7. By the act of March 30, 1805, by lottery, eighty thou- 

sand dollars, the net avails of which, after deducting 
interest paid into the State Treasury and otherwise, 
amounted to, (see Assembly Journal, for 1814, page 
118; also note to Schedule V.) 55,000 00 

8. By the act of April 13, 1814, and of April 5th, 1822. 

1. For the erection of buildings, $100,000 

Carried forward, $ $ 



6 [Assembly 

Brought forward, $ $ 

2. For paying an existing debt, 30,000 

3. For Library and Apparatus, 20,000 

4. For the relief of indigent students,. . . . 50,000 

200,000 00 



$331,612 13 



Note to 8th Grant. — It having been stated that the above lottery 
for the promotion of literature could be drawn in six years, interest 
was provided in the grant, for that length of time, and as this was 
expected to be the case, the expense authorized for buildings, charity 
students, &c, was immediately incurred ; but such was the great 
delay in the drawing of the lottery, that at the end of nine years not 
a cent of the principal had been received, and only about four and a 
half years of the interest, and now at the end of thirty years, the 
whole of the avails of this lottery has not yet been received by Union 
College, though all the institutions interested therein have been by 
Union College fully paid. 

The above statement of grants made to Union College by the State, 
and the net avails thereof, is believed to be correct, and that it will be 
found to be so by referring to the Comptroller's reports, and the Jour- 
nals of the Assembly hereinafter referred to. Still the undersigned 
has observed that it has sometimes been stated by speakers in the 
Legislature, and even by committees in their reports, (see Assembly 
Journal for 1823, page 138,) that grants had been made to a much 
larger amount. This error it is presumed has arisen, in part at least, 
from assuming that the whole balance belonged to Union College 
which remained to be raised by the " Lottery for the promotion of 
Literature," when said College assumed the management thereof un- 
der the act of April 5, 1822, " to limit the continuance of lotteries," 
amounting to $322,256.81, whereas it is necessary to deduct $45,- 
279.74, which belonged to Hamilton College, and $17,000 thereafter 
paid said College, making $62,279.74; and $33,971.58 which belong- 
ed to the College of Physicians and Surgeons; $4,529.30 which be- 
longed to the Asbury African Church; and $12,000 to the Historical 
Society, all of which sums, amounting to $112,780.62, require to be 
deducted before the amount belonging to Union College could be shown , 



No. 213.] 



SCHEDULE II 



Containing a statement of permanent investments, 
not for revenue, in real estate, now held by Union 
College. 

Buildings. 

Three college edifices for the accommodation of students, inclu- 
ding six officers dwellings, the chemical laboratory, three society halls, 
college library room, and rooms for three society libraries. 

Two edifices containing philosophical hall, chapel, theological hall, 
and three lecture rooms. 

An edifice containing the geological hall and museum. 

Two edifices, containing each accommodation for a family, a hall 
for boarding students, and additional study and lodging rooms, to- 
gether with the sites, yards and outhouses, belonging to these respec- 
tive buildings. 

Grounds. 

Four gardens in connection with the officer's houses, containing 
over five acres. 

An ornamental and botanical garden of over four acres, for the use 
of students in the study of botany, and of the professor of botany. 

Extensive groves, and walks and ornamental grounds, for the use 
of students in exercise and recreation, and also for a college ceme- 
tery. 

Two hundred and thirty-five acres of land in immediate connexion 
with the college edifices, a portion of which is intended for the use of 
such students as wish to cultivate small pieces thereof ; and a portion 
of which, (63 acres,) is appropriated to the boarding halls for the 
purpose of diminishing the price of board to indigent students ; and 
a portion which (about 93 acres) is appropriated to experimental 
husbandry, under the direction of a professor of agricultural chem- 
istry intended to be appointed, and for which the same is in a state 
of preparation. 



/ 



8 [Assembly 



These grounds when purchased, were all, to a great extent, without 
fences, and intersected by deep ravines, and presented, as a whole, a 
surface of great irregularity and rudeness, and have at great expense 
been fenced, levelled underdrained, planted, &c.,and are now among 
the most beautiful grounds in this or any other country. 

Also a site for an observatory, connected with about forty acres 
of additional grounds, and a dwelling house : through which grounds 
a living stream of water flows sufficient for affording instruction in 
hydraulic operations, and from which, by means of a water ram, 
water is already conveyed to the college premises. On these grounds 
it is in contemplation to erect an observatory, and establish a professor 
of astronomy in connection therewith, under the new arrangement in 
contemplation by the trustees. 

Which buildings, gardens, grounds, &c, &c, amounting to about 
two hundred and eighty acres, lying in immediate connexion with 
said buildings, and adjoining the compact part of the city, have cost 
(irrespective of interest) $296, 485.31. 

Mote. — The only exchange of property permanently invested in 
real estate, has been already reported to and approved by the Legis- 
lature, as will be seen by referring to the journal of the Assembly for 
1814, pages 113 and 117. 



SCHEDULE III. 

Containing a statement of permanent investments, not 
for revenue, in personal property. 

Classical and college library, and philosophical and chem- 
ical apparatus, at cost, irrespective of interest, $32,817 39 

Also furniture in recitation rooms, &c, &c, horses, wag- 
ons, harness &c.,and farming implements, mechanics 
tools, &c.,&c, estimated at, r . . . . 2,000 00 

$34,817 39 



No. 213.] 9 



SCHEDULE IV. 

Containing a statement of the investment (for revenue) 
of the permanent fund of forty-three thousand five 
hundr:d and eighty three dollars and 95 cents, the 
avails of a grant for the support of President and 
Professors, by the act of March 7th, 1800, concerning 
which no report is required by the law, which in- 
vestments are as follows, viz. : 

In the bond and mortgage of Zenas Clapp & Lyman Clary, $8 , 173 54 

Owen Cotton, 171 68 

Daniel Joslin, 1 ,000 00 

Elias Allen, 344 34 

Russel Warren, 94 85 

William Wood, 470 15 

Nathan Gates, 305 07 

John C. Mattice, 209 31 

Justus EL Barnes, 522 15 

Elijah Jucket, 355 00 

Jonathan Hagadorn, 150 00 

Andrew Gregg, 162 00 

Harmanus Minklaer, 500 00 

Henry Edwards, 825 00 

John T. Vischer, 93 75 

Cornelius Vielie, 400 00 

Robert Leavitt, 603 38 

John Bt. Van Eps, 260 00 

Chatfield Fenn, 500 00 

Philip R. Toll, 109 75 

David Pruim, 590 06 

Abijah Freeman, 350 00 

Margaret Cooper, 3 ,500 00 

H. C. Billings & W. B. Van 

Vorst, 3,000 00 

Philo Stevens, 2,800 00 

Thomas Armstrong, two,. . . . 746 71 

Isaac Q. Leake, 750 00 

Willliam D. Ross, 5 ,000 00 

Lewis Benedict, 4 ,000 00 



10 [Assembly 

In the bond & mortgage of James C. Van Dyke, 4 , 108 66 

Moses Beal, 1,725 48 

Jonathan Pearson, 112 50 

Joseph Y. Peek, 640 00 

Samuel and Mary Smith, 1 ,000 00 

$43,573 38 



Note. — The above fund for the support of the President and Pro- 
fessors, in conformity to the act of March 7, 1800, instituting the 
same, was, as appears from the books, progressively and fully in- 
vested as the lands were sold, in the bonds and mortgages arising 
therefrom, and said investment it is believed has remained unchanged, 
otherwise than by the substitution of other bonds and mortgages in 
place of those originally taken, when any of the same have been 
paid off. 



SCHEDULE V. 

Containing a statement of the investment (for revenue) 
of the permanent fund of thirty-five thousand dollars 
for the support of Professors, granted by the act of 
March 30th, 1805, the same to be reported to the 
Legislature as follows : 

1750 shares of $10 each in the capital stock of the 
Mohawk Bank, „ $17,500 00 

Being less than the amount of the above grant by 
$17,500, the same being the amount which has for 
many years also been invested in the stock of the 
Mohawk Bank; which amount of stock has recently 
been withdrawn, and the avails thereof applied to 
the payment of debts, or transferred to the invento- 
ry of disposable property below, and an equal am't. 
of stock in other banks substituted as investments in 
the place of the stock so withdrawn, as follows : 



No. 213.] 11 

420 shares of $28 each in the New-York State Bank, 11,760 00 
131 shares of $40 and $50 each in the Farmer's Bank 

of Troy, 5,910 00 



$35,170 00 



Note. — No part of the above fund of thirty-five thousand dollars, 
instituted by the act of March 30, 1805, for the support of Profes- 
sors, was ever invested under said act, because no part of said fund 
was received until long after the passage of the act of Feb. 22d, 
1811, "authorizing the Trustees of Union College to invest monies 
previously granted by this State in the capital stock of the Mohawk 
Bank." Under this act this fund w T as fully and duly invested as soon 
as received, and the fact that it was so invested was duly reported by 
the trustees in their report to the Legislature for the year 1812, af- 
ter which it has been reported as continued to be invested according 
to law. This investment as appears from the books, remained un- 
changed till the year 1847, when $17,500 of the stock of the Mo- 
hawk Bank, was, in conformity to the act of April 25, 1831, "in re- 
lation to the lunds of Union College" withdrawn, and other stocks 
of an equal amount as above stated were substituted in the place 
thereof. 



SCHEDULE VI. 

Containing a statement of the investment (for revenue) 
of the permanent fund of fifty thousand dollars grant- 
ed by the Act of April 13th, 1814, for the assistance 
of indigent students, the same to be reported to the 
Regents, viz: 

1390 shares in stock of Mohawk Bank, at $10 each,. 13,900 00 

17 " Manhattan Co., 50 " 850 00 

In bond and mortgage of Yates & Mclntyre, 17,425 92 

" " Peter Banker, 4,450 00 

" " Jonathan Pearson, 1,000 00 

" " J. Js. Van Eps & Brother, . . 970 00 

$38,595 92 



12 | Assembly 

Being less than the amount of the above grant by about 
$11,395; the same having been invested in the stock 
of the Mohawk Bank, which amount is now with- 
drawn, and an equal amount of bonds and mortgages 
substituted as investments in the place of the stock 
so withdrawn, as follows : 
In the bond and mortgage of Alexander B. Shankland 4,000 00 

" " Abraham Kenneda 400 00 

3,000 00 

1,150 00 

2,500 00 

360 00 

$50,005 92 



" " Jabez D. Hammond, 

" " John J. Van Schaick 

u u 



5 • 

James Slater, 

" * Robert Cunningham,. . 



Note. — As successive portions of the above fund of fifty thousand 
dollars, granted by the Act of April 13th, 1814, for the aid of indi- 
gent students, were received, the same were, as appears from the books, 
invested in the capital stock of the Mohawk bank, and these invest- 
ments were continued until said investment amounted to $22,795, and 
the residue was invested in bonds and mortgages ; and in so far as 
appears from the books or is known to the undersigned, said invest- 
ment remained unchanged, otherwise than by the substitution, when 
any bonds and mortgages were paid off, of other bonds and mortga- 
ges of an equal amount in the place thereof, until the year 1846, when 
$11,395 of said Mohawk bank stock was withdrawn, and bonds and 
mortgages equal in amount, as above stated, substituted in its place. 

It may be proper here to state, that it must not be understood, that 
the investments of these several funds have always been kept invio- 
lably separate, and that as any bond and mortgage in any one has 
been paid off, another of precisely the same amount has simultane- 
ously been substituted in its place; this would be impossible in prac- 
tice, because impossible on the payment of bonds and mortgages in 
different funds, to supply without great delay, and unnecessary loss 
of interest, the place of each several separate bond so paid, by others 
of precisely the same several separate amounts. Still, care has been 
taken that the whole amount of bonds and mortgages and bank stocks 
possessed, and held sacred as an investment for these several perma- 
nent funds, should always exceed in amount, the amount of said funds 
collectively. 



No. 213.] 13 



SCHEDULE VII. 

Containing a statement of additional investments in 
real and personal property, remaining at the disposal 
of the trustees, as may be from time to time deem- 
ed proper, invested as follows: 

Set apart by the trustees for the benefit of the classical library, 
and as a charity fund. 

In the bond and mortgage of John Robinson, $1,000 00 

Luke Blair,.... 873 70 

contract of Russel Rodgers, 1,100 00 

William House, 1,161 00 

bond of H.N.VanPatten, 258 00 

Shelburn Ives,. . 99 37 

Benjamin Nott,. 3,400 00 

note of John Austin Yates 1,170 69 

Isaac Riggs, . . . 975 00 



$10,037 76 



Intended for the erection of an Observatory. 
In the stock of the Mohawk Bank, 200 

shares of $10, each, $2,000 00 

bond of Hezekiah Bradford, 20,000 00 



$22,000 00 



Remaining for the payment of debts and contingent 
expenses. 

235 city lots, lying chiefly on Union, Fonda, Ro- 
meyn, Bridge, and State streets, on four of which, 
dwelling houses have been erected. The whole are 
estimated at $41,125, being an average of $175, per 
lot, many of them however, were purchased at a 
much higher price, and they are now selling at a 
higher price, (from $300 to $400,) but as it will be 
a number of years before they will all be sold, it is 
assumed that $175, would be a fair average estima- 
tion of the whole, $41,125 00 

In the stock of the Bank of Albany, 520 

shares of $30, each, 15 ,600 00 



14 [Assembly 



In the stock of the Schenectady Bank, 50 

shares of $10, each, 500 00 

In the stock of the Schenectady Steam 

mills, 10 shares of $100, each, 1,000 00 

In the stock of the Schenectady Locomo- 
tive Manufac'y, 10 shares of $100, each, 1,000 00 
In the stock of the Schenectady Marble 

and Cement Co., 10 shares of $50, each, 500 00 

Bond and mortgage of Russell Rodgers, . . . 300 00 

Patrick Gallagher,. . 150 00 

W. &J. Dormady,.. 290 00 

JohnCarr, 20 00 

Patrick McKinney,. . 265 00 

Contract of Adam Tinklepaugh, . 400 00 

George H. Campbell, 951 25 

Christian H Brooks, 379 20 

Patrick Costello, 315 00 

James Harbison,. . . . 600 00 

• Richard Sturdy, .... 251 00 

William McNeven,.. 40 00 

Teunis Rulapaugh, . . 243 20 

Bond of Nich. H. Van Patten, 110 00 

Thomas B. Stillman, 258 93 

Lease of James G. Foster, & Co 1,000 00 
Note of D. D. Campbell, & 

others, 1,000 00 

Thomas Wing, 100 00 

Bonds and notes taken from graduates for 
advances made to enable them to com- 
plete their education, 18,366 86 

Book accounts against graduates for simi- 
lar advances, 25,082 47 

Interest due on investments for revenue, 

March 24, 1849, 2,402 89 



112,250 80 



$144,288 56 



Note to Schedule VII. 
The exchanges which have taken place in the disposable property 
of Union Col lege, real and personal, during the last twenty-five years, 



No. 213.] 15 

have been so constant and numerous, that to report the same in detail 
would require the transcribing of no inconsiderable part of several 
volumes. It is presumed that an account of these every day trans- 
actions forms no part of the information desired by the resolutions 
transmitted to the trustees, and that were it given it would be as un- 
interesting to the Assembly as it would be laborious to compile and 
compare the same. 

On the aforesaid indebtedness of indigent students, and students in 
straitened circumstances, whether for advances included among the 
notes or the book accounts stated above, interest is seldom required ; 
those who become able and willing, pay ; with those who do not, it 
is otherwise ; and as these claims of the College against those who 
have been assisted in acquiring their education, are seldom enforced by 
law, it is reasonable to calculate that a large amount of this existing 
indebtedness, if ever cancelled, will be gratuitously cancelled, as 
many previous indebtednesses have been. 



SCHEDULE VIII. 

Containing a statement of the losses incurred by Union 
College, irrespective of interest. 

By the failure of the Franklin Bank, $10 ,000 00 

" " Hudson Bank, 5 ,000 00 

" " N. Y. Poudrette Co., 2,300 00 

" " • Schen'y Waterworks and Sacan- 

" " daga Turnpike Co. , 675 00 

" lt individuals under the Bankrupt Act, 

and otherwise, 33 ,871 61 

By a loss on U. S. stock sold in 1816, stated at 2 , 300 00 

$54,146 61 



16 



[Assembly 



SCHEDULE IX 

Containing a statement of the debts owed by Union 

College. 

To the Comptroller of State, irrespective of interest,. $13,036 16 

Peter Rowe, Esq., " 6,000 00 

Andrew Truax, Esq., " 3,000 00 

heirs of Nancy Van Guysling, " 1,525 24 

the Schenectady Bank, « 1,000 00 

the Mohawk Bank, « 5 , 1 14 1 1 

$29,675 51 



Schedule I. 



Schedule II. 



Schedule III. 



Schedule IV. 



Schedule V. 



Schedule VI. 



SUMMARY OF THE FOREGOING 

Amounts Received. 

Total amount of State grants irrespect- 
ive of interest,. $331,612 13 

Amounts Invested. 

In buildings and grounds, 
irrespective of interest, $296,485 31 

In Library and apparatus 
irrespective of interest, 34,817 39 

For support of President 
and Professors under 
act of March 7, 1800, 43,573 38 

For support of Professors 
under act of March 30, 
1805, 35,170 00 



For aiding indigent stu- 
dents under act of 
April 13, 1814, 



50,005 92 



o. 213.] 17 

Schedvle VIL At the disposal of trustees, 144,288 56 



Total investment exclusive of losses, $604,340 56 

Schedule VIII. Amount of losses incurred, 54,146 61 



Total investment including losses, $658,487 17 
Schedule IX, Amount of debts, 29,675 51 



$628,811 66 
Excess of investment over amounts received and debts, $297,199 53 



From the foregoing statements it will be seen in what the entire 
property of Union College at present consists, and how it is invested. 

From the following exhibit of the condition of the several perma- 
nent fund accounts it will be seen how all the grants of the state "not 
for revenue" have been appropriated, and how all the grants "for rev- 
enue" have been invested; and how the avails of each have been ap- 
plied: which several accounts are as follows: 

1. The buildings and grounds account. 

2. The library and apparatus account. 

3. The President and Professors account. 

4. The indigent students' account. 



EXHIBIT 1. 

Buildings and Grounds. 

BR. 

1796. To amount granted by act of April 11th, $10,000 00 

1800. To amount granted by act of March 7th, 10,000 00 

1805. To amount granted by act of March 30th, 35,000 00 

1814. To amount granted by act of April 13th, 100,000 00 

To amount to balance, 141 ,485 31 

$296,485 31 

♦ 

[Assembly, No. 213.] 2 



18 [Assembly 

CR. 

1806. By amount expended on old college building 

and site, $66,618 92 

1823. By amount expended on new college buildings 

and site to date, 96 ,461 69 

1837. By amount invested in West College building 

and site, 10,000 00 

1848. By additional expenditures to July 1, on new 

college building and site, 123 ,404 70 

$296,485 31 

By excess of expenditure by the trustees, over amounts 

received from the State, $141,485 31 



EXHIBIT 2. 
Library and Apparatus. 

DR. 

1795. To amount of grant under the act of April 9th, $3,750 00 

1814. To amount of grant under act of April 13th,. . 20,000 00 

To amount to balance, 9 ,067 39 

$32,817 39 

CR. 

1848. By amount expended to July 1, for purchase of 

books and apparatus, $25 , 179 02 

By balance brought from account with classical 

library, 7,638 37 

$32,817 39 

By excess of expenditure by the trustees, over amount 

received from the State, $9,067 39 



No. 213.] 19 

EXHIBIT 3. 

President and Professors under the act of March 7, 
1800, and act of March 30, 1805. 

1. Under act of 1805. Dr. 

1823 To dividend received on Mohawk Bank stock 

to date as per Treasurer's statement, .... $19,600 00 

1824 6 per cent dividend Mohawk Bank, 2,100 00 

1825 do 2,100 00 

1826 do 2,100 00 

1827 do 2,100 00 

1828 do 2,100 00 

1829 do 2,100 00 

1830 2 J do 875 00 

1831 6 do 2,100 00 

1832 do 2,100 00 

1833 do 2,100 00 

1834 do > 2,100 00 

1835 do 2,100 00 

1836 do 2,100 00 

1837 3 do 1,050 00 

1838 9 do 3,150 00 

1839 7 do 2,450 00 

1840 7 do 2,450 00 

1841 7 do 2,450 00 

1842 5 do 1,750 00 

1843 4J do 1,575 00 

1844 5 do 1,750 00 

1845 do 1,750 00 

1846 do 1,750 00 

1847 6 per cent on bond and mortgage in part,. . 2.100 00 

1848 6 do . . 2,100 00 

2. Under act of 1800. 
1848 

July 1. To interest received under act of 1800 on the 

sale of 10 military lots granted, 109,669 72 

Amount to balance carried forward, 258,101 54 

$437,771 26 



20 



[Assembly 



1823 


By 


amount paid to president 


and 


professors to Cr. 






date as per treasurer's statement, 128,026 36 


1824 


By 


amount paid president and professors, , 




8,775 50 


1825 




do 








6,862 00 


1826 




do 








9,078 60 


1827 




do 








14,419 83 


1828 




do 








4,099 50 


1329 




do 








8,819 66 


1830 




do 








9,323 33 


1831 




do 








12,766 64 


1832 




do 








13,085 99 


1833 




do 








13,841 16 


1834 




do 








13,509 98 


1835 




do 








13,276 98 


1836 




do 








16,310 48 


1837 




do 








14,578 48 


1838 




do 








15,000 31 


1839 




do 








15,212 08 


1840 




do 








12,315 94 


1841 




do 








16,193 32 


1842 




do 








16,325 37 


1843 




do 








12,715 72 


1844 




do 








14,257 76 


1845 




do 








13,227 95 


1846 




do 








]4,579 38 


1847 




do 








10,931 64 


1848 




do 








10,237 50 






$437,771 26 




By 


excess of expenditures 


by 


trustees over 




amount received from Stat< 






$258,101 54 











No. 213.] 



21 



EXHIBIT 4. 
Indigent Students under the act of April 13, 1814. 

DR. 

1823 To dividends and interest, received on grant of 

$50,000, as per report to legislature in that year $15,311 61 

1824 To dividend and interest received, 3,250 00 

1825 do do 3,250 00 

1826 do do 3,250 00 

1827 do do 3,250 00 

1828 do do 3,250 00 

1829 do do 3,250 00 

1830 do do 2,375 00 

1831 do do 3,250 00 

1832 do do 3,250 00 

1833 do do 3,250 00 

1834 do do 3,250 00 

1835 do do 3,250 00 

1836 do do 3,250 00 

1837 do 4o 2,500 00 

1838 do do 4,000 00 

1839 do do 3,500 00 

1840 do do 3,500 00 

1841 do do 3,500 00 

1842 do do 3,000 00 

1843 do do 2,875 00 

1844 do *do 3,000 00 

1845 do do 3,000 00 

1846 do do 3,000 00 

1847 do do 3,222 00 

1848 do do 3,222 00 

Amount to balance, 16,875 82 

$111,881 43 



22 [ Assembly 

CR. 

1823 By amount expended for relief of indigent stu- 
dents, to date as reported to legislature, $17,502 72 

1823 By amount expended for relief, 2,885 62 

1824 do do 4,272 73 

1825 do do 2,658 30 

1826 do do 1,682 50 

1827 do do 3,062 00 

1828 do do 3,428 44 

1829 do do 2,246 97 

1830 do do 1,972 77 

1831 do do 3,034 94 

1832 do do 2,622 78 

1833 do do 2,622 78 

1834 do do 4,859 81 

1835 do do 5,011 15 

1836 do do 4,346 16 

1837 do do 4,871 24 

1838 do do 2,466 67 

1839 do do 3,816 38 

1840 do do 3,816 39 

1841 do do 3,006 00 

1842 do do 2,593 00 

1843 do do 2,764 00 

1844 do do 3,146 00 

1845 do do 3,315 00 

1846 do do 3,335 00 

1847 do do 3,802 13 

1848 do do 4,165 63 

Balance brought from account with indigent students, 

instituted by trustees, 8,576 32 

$111,881 43 
By excess of expenditure by trustees over amount 

received from state, 16,875 82 



No. 213.] 23 

Trustees of Union College in account for Classical 

Library. 

DR. 

1823. To income from the investment of the residue 

granted by the State by the 10th sec. of the 
Act of March 30th, 1805, as received to this 

date, 

1849. To income as aforesaid to this date, 

To amount to balance, $7,638 37 

$7,638 37 
To amount transferred to library and apparatus 

account, $7,638 37 

CR. 
1823. By amount expended for books to this date as 

per report to Legislature, 5,638 37 

1849. By amount expended to this date as above, .... 2,000 00 

$7,638 37 
By excess of expenditure by trustees over amt. 
received from State, $7,638 37 



Trustees of Union College in account vs. indigent stu- 
dents fund. 

DR. 

1823. To income from the investment of the residue 
granted by the State by the 10th section of 
the Act of Mar. 30, 1805, as received to this 
date, 

1849. To income as aforesaid to this date, 

To amount to balance, 8,576 32 

$8,576 32 
To amount transferred to indigent students ac, $8,576 32 



24 [Assembly 

CR. 

1823. By amount expended for the relief of indigent 

students as per report to Legislature, „ 8,576 32 

1849. By amount expended to this date as above (inclu- 
ded in previous account with indigent stud'ts) 

$8,576 32 
By excess of expenditure by trustees over am't 

rec'd from State, $8,576 32 



Note. — Although the trustees of Union College are fully credited 
on one side in the two last preceding accounts, for all the money they 
have from time to time advanced in establishing a classical library, 
(from which indigent students have hitherto received books gratis) 
and for aiding indigent youth; they are not made debtors on the oth- 
er side for any income arising from the investment of any residue 
granted by the State by the 10th section of the aforesaid act of March 
30, 1805, or otherwise; and the reason why they are not, is because 
no such residue was ever received, or ever existed for investment ; and 
the fact that there did not any such residue exist, and the reason why 
there did not, will be seen by referring to the grants enumerated in a 
memorandum presented by a committee of the Legislature: see Jour- 
nals of the Assembly for 1814, page 118, and also for 1823, pages 
1006 and 1007, where the subject is more fully explained. 

The facts of the case in relation to this grant were as follows: 

Union College petitioned for a grant of forty-five thousand dollars 
only. But the lottery by which it was proposed to raise the same, 
could not probably be commenced under four years, (see 5th section 
of the act of March 30, 1805;) and it was estimated that the lottery 
to be granted might be drawn in four years more. To provide for 
the interest on $45,000 for eight years, would require the sum to be 
provided for to be increased to $70,000; but as it might take even 
more than eight years, to provide for that contingency, ten thousand 
dollars were added, making the entire amount $80,000. If the draw r - 
ings were not successful, the additional ten thousand dollars would 
be swallowed up in providing for the interest; if successful, more than 
$45,000 with interest thereon, might be provided for, and a larger 
surplus than ten thousand dollars remain. Hence, $35,000 was abso- 
lutely directed to be invested for Professors; $35,000 allowed to be 



No. 213.] 25 

appropriated to buildings; and the surplus, if any, be the same more 
or less, was to be invested as the 10th section of the act directs. 
Such, however, was the delay in drawing this Lottery, that the first 
moneys arising therefrom, were, as appears from the Comptroller's 
report for 1812, paid into the Treasury of the State for moneys 
loaned to Union College by a law passed 1806. (See Journals of 
Assembly for 1823, pages 1007 and 1008.) 

Passing over the ordinary business transactions about which there 
could be no debate, the undersigned has endeavored to give in his 
report, a condensed and yet clear and comprehensive view of every 
thing material to the forming of a correct opinion on all the different 
subjects concerning which information was required; and if his report 
is not after all, as ample in its details, as the Assembly desires, he 
he can only say, that it is as ample as he has been able to make it in 
the short time allowed therefor; and this he trusts will be believed 
when it is considered that the same has been compiled from multifa- 
rious transactions, scattered through so many volumes, relating to 
things of so many year's standing, and concerning most of which the 
undersigned had but little previous acquaintance; and this for the 
reason that the books, from which the above statements are taken, 
have been kept by himself only nine years, beyond which his personal 
knowledge does not extend, during which the accounts contained in 
said books have been annually examined by a committee to which the 
Comptroller has usually belonged, and the same have been found to 
be Correct, as will be seen by the recorded certificates of said com- 
mittees. y 

The foregoing report having been prepared by the undersigned, 
(and the Board of Trustees not being in session,) the same has been 
by him submitted to the Finance Committee, approved, and directed 
to be forwarded to the Assembly. 

All which is respectfull)*submitted. 

ALEX. HOLLAND, Treasurer. 
Union College, April 4, 1849. 



SUPPLEMENT. 

After the reading and approval of the above report, by the Finan- 
cial Committee, it was stated by a member of said committee, that it 
being generally understood that the fiscal concerns of Union College 
had been subjected for a length of time to the supervision of the Pre- 
sident, and it might be inferred by the comprehensiveness and spe- 
ciality of the resolutions of the Assembly, that they were framed with 
a view to the obtaining a statement, not only of the ordinary trans- 
actions, but also of the special trusts with which the President had 
been charged ; and the report might not be deemed satisfactory, if no 
notice was taken of the same. 

In conformity to the above suggestion, the following supplement 
has been prepared, verified and approved, and is submitted in connex- 
ion with the preceding statements, as forming an entire report, which 
supplement is in the words following, to wit : 

In so far as the aforesaid statements relate to transactions, subse- 
quent to 1804, when the President entered on the duties of his office, 
and previous to 1839, when the undersigned was appointed treasurer, 
the same are made out from books annually examined by an auditing 
committee, and containing annual certificates of the correctness of the 
contained accounts ; from which it appears that for the greater part 
of this whole period, the more important fiscal transactions of Union 
College, have been very much under the direction of the President, 
and that for the last twenty-five years he has been explicitly and ful- 
ly charged with the supervision of tl&e same, by the recorded resolu- 
tions of the board. In conformity to said resolution, the President 
has exercised a general supervision of the fiscal concerns of the col- 
lege, and though he has not himself held and applied the funds, he 
has usually advised or directed the undersigned with reference to their 
application. The means of finding with what effect they have been 
so applied during the last nine years, are believed, without any fur- 
ther detail, to be fully furnished in the foregoing schedules. 



No. 213.] 27 

In what manner and with what results the fiscal trusts reposed in 
the President had been previously exercised, has been easily ascer- 
tained, the same being matter of record in the books of the previous 
treasurers, which books, (irrespective of the days spent in behalf of 
the ex-officio, Trustees, by the Comptroller and Secretary of State, the 
Hon. Silas Wright, and the Hon. John A. Dix, in examining the 
same when passing out of the hands of Henry Yates into the hands 
of Jonas Holland,) have on two occasions been subjected to a special 
and searching examination, in so far as the fiscal transactions of the 
President are concerned. 

The recorded reports of the Hon. Silas Wright, and Wm. 
James, Esq., on the former occasion, made in 1831, contain an ex- 
plicit attestation to the fidelity, disinterestedness and success with 
which the fiscal affairs of the college had been conducted by the Pre- 
sident under the plenary powers granted to him, and, having stated 
the fact, notwithstanding there had been expended on benevolent ob- 
jects an amount exceeding legislative requirements, and notwithstand- 
ing a great amount of losses in stocks and otherwise had occurred, 
there still remained in the hands of the trustees, an excess of pro- 
perty over all the grants made, amounting to more than one hundred 
thousand dollars. This excess the examiners attribute to the ability 
with which the fiscal concerns of the college have been conducted, and 
the liberality of those conducting the same. 

Did the undersigned feel himself called on in making out this re- 
port, to assign a reason why the excess of property in the hands of 
the trustees over all grants made, (then amounting to more than one 
hundred thousand dollars,) now amounts to more than two hundred 
and forty thousand dollars, he could only do so by repeating the rea- 
son assigned in the above recorded report, made on the former exam- 
ination. 

The recorded report on the latter examination, by Governor Marcy, 
the Hon. Silas Wright, and the Hon. John. P. Cushman, contains 
the same attestation to the fidelity, and ability and success, with which 
said fiscal transactious have been conducted by the President, under 
the trusts committed to him not only, but also recommends, for 
the reasons stated, the continuance of those trusts : from the conclu- 
sion of which latter report, made in 1834, the subjoined extract is 
taken. 



28 [Assembly 

"That the President has furnished extensive means, pei formed im- 
portant services, and run great personal hazards, and this evidently 
without any sinister motive, without the design of personal gain, but 
for the purpose of securing and advancing the interests of Union 
College, or some kindred institution connected therewith. That the 
course of the President throughout all the novel and difficult emer- 
gencies which have occurred in conducting this whole business has 
been marked by firmness, sagacity, and disinterested zeal for the in- 
terests of the college, and of education. 

That the full powers with which he was invested by the trustees, 
have been exercised with wisdom and success, and from the informa- 
tion they have received of his views in relation to this whole subject, 
your committee are of the opinion that the interests of the college, 
and of science, require that these plenary powers should be con- 
tinued." 

Finally, in view of the total net avails of all the grants made to 
Union College, amounting (irrespective of interest) to $331,612.13, 
and the total value of all the property, real and personal, now pos- 
sessed by said College, estimated at cost, and amounting, irrespective 
of interest, to $604,340.56. 

In view of the fact that there has been expended by the trustees, 
(not for revenue,) in buildings, gardens, ornamental grounds and ex- 
perimental farming grounds, $141,485.31 more than has been granted 
by the State for that purpose ; that there has been laid out for library 
and apparatus $9,067.39 more than has been granted for that pur- 
pose. 

In view of the fact that the $43,483.93, the $35,000, and the 
$50,000, granted for permanent investment (for revenue) in bonds 
and mortgages and bank stock, the two former for the support of of- 
ficers of instruction, and the last for the assistance of indigent youth, 
amounting in all to $128,483.93, have been and still continue so in- 
vested ; and the fact that $258,101.54 more has been expended in 
the support of officers of instruction than has been received from the 
entire avails of the said funds granted by the State for that purpose ; 
that there has (irrespective of $43,449.33, advanced to indigent stu- 
dents to assist them in obtaining an education, no considerable part of 
which will probably ever be repaid,) been gratuitously bestowed on 



No. 213.] 29 

them by the trustees, an additional amount of $16,875.82 more than 
has been received from the grants of the State for that purpose, an 
excess amounting in all to $425,530 .06. In view of the fact that one 
thousand eight hundred and fifty-nine young men, (as will appear from 
the annual reports heretofore made,) who must otherwise have been 
excluded from the advantages of a public education, have, by the joint 
aid of the State and the trustees, been furnished with the same, among 
whom are some of the brightest ornaments that adorn the different 
professions in the State. In view of these facts, and the further fact 
that the debts now owed by the College are $24,471 . 10 less than the 
losses hitherto sustained. In view of these facts, and when it is con- 
sidered that after paying said debts the trustees will still have remain- 
ing at their disposal $10,000 for the assistance of indigent young 
men, $22,000 for the erection of an observatory, and $82,575 . 30 
for meeting other contingent claims of science ; when these things 
are considered, it is trusted that whatever unintentional informality or 
deficiency may have sometimes been in their reports, that it will still 
appear, both to the Legislature and to the public, (as it has always 
heretofore on examination appeared,) that the grants made to Union 
College have been managed with commendable care, and to say the 
least, that those to whom the management of the same have been 
entrusted have not proved themselves altogether incompetent or un- 
profitable servants. 

The foregoing accounts have already been, by a disinterested ac- 
countant, examined and verified by comparing the same with the 
books from which they have been made ; and the treasurer will be 
most happy as he is assured the president of College will also be, to 
have the same again personally verified, as their former statements 
have been more than once, by the Comptroller and Secretary or some 
of the other officers of State, acting as a committee from the ex officio 
trustees or by any other authorized committee, that will consent to 
take the trouble of conferring such an additional favor on the insti- 
tution. 

The undersigned has been directed by the president of the college 
to add that he was not aware that the trustees of Union College were 
required to report to the Legislature, concerning any other funds, 
than those granted by the act of March 30, 1805, and report was 
made of this investment, in ] 812, when the same was invested ; and it 
has as he supposes been reported every year that it remained so in- 
vested according to law. If however the manner of these annual re- 



30 [Assembly 

ports has been defective in either form or matter, the same has been 
unintentional, and will when known be cheerfully corrected. 

Though aware that Academies and Colleges receiving annual al- 
lowances, were required to make annual reports concerning the appli- 
cation thereof, to the Regents, he was not aware that Union Col- 
lege, that receives no such allowance, was required by law to make 
any fiscal report to the Regents, except in relation to the grant made 
under the act of April 13, 1814, and if the college has been required 
by law to make any other fiscal report to the Regents, they have been 
ignorant of it ; which is the reason why the reservation of rights has 
been appended to their more comprehensive fiscal reports. If this 
has been done in error, it is an error into which they were led by the 
advice of the Hon. G. A. Talcott, then Attorney General, and in 
which they were confirmed by the opinions of the late Chief Justice 
Spencer, the late Chancellor Kent, the late Justice Piatt, Thomas Ad- 
dis Emmett, John Wells and David B. Ogden, Esqrs., which opin- 
ions, together with the reply of the college to the Attorney General's 
report, which report will be found in the Ass. Jour, for 1824, Doc. No. 
182, are herewith submitted. The time, however, has gone by in which, 
the dispute to w T hich these opinions relate, excites any interest ; the 
individuals concerned in it are it is believed with a single exception 
gone to their last account ; and it is also believed that the trustees of 
Union College would prefer hereafter to make their annual report in 
full to the Regents, which they are now required by the act of March 
30 1805, to make in part to the Legislature, and in part by the act of 
April 13, 1814 to the Regents, were a law passed authorizing them 
to do so. 

All of which is respectfully submitted. 

ALEX. HOLLAND. 

Treasurer. 
Union College, April 5, 1849. 



City of Albany, ss. — Alexander Holland, Treasurer of Union Col- 
lege, being duly sworn, deposes and says, that the foregoing statement 
of the condition of Union College, as far forth as the facts therein 
stated in answer to the aforesaid resolutions of the House of Assembly 



No. 213.] 31 

requires, are, according to the best of his knowledge and belief, just 
and true. ALEX. HOLLAND. 

Subscribed and sworn to before me, 
this 5th day of April, 1849. 

James B. Sanders, 

Comrrtr of Deeds. 



City of Albany ', ss. — Eliphalet Nott, President of Union College, 

being duly affirmed, saith, that although he has not either health or 

time to verify the foregoing statements presented by the Treasurer, by 

a comparison of the same with the books of the College, still, having 

heard the same read, and having been personally acquainted with and 

responsible for most of the important transactions contained therein, 

he is led from the known accuracy of the Treasurer, as well as from 

his own recollections, to believe the same to be correct and true. 

ELIPH'T NOTT. 

Affirmed to before me, this 5th ? 
day of April, 1849. J 

James B. Sanders, 

Corner of D eeds. 



APPENDIX 

To the Documentary Evidence, relative to the contro- 
versy between the Regents of the University, of the 
State of New- York, and the trustees of Union College, 
containing the opinion of the late Chief Justice 
Spencer, the late Mr. Justice Piatt, Thomas Addis 
Emmet, John Wells, David B. Ogden, Esq'rs.; and 
also, the opinion of the late Chancellor Kent. 



[Assembly, No. 213. 



APPENDIX. 

Opinion of the late Chief Justice Spencer. 

I have considered the points in controversy, between the Regents of 
University and the trustees of Union College, and the whole case may 
be resolved into three questions : 

1st. Whether the Regents possess, in the technical import of the 
terms, visitatorial powers, either at common law or under the statute, 
over Union College; and have, therefore, a right to require from the 
trustees an exposition of their financial concerns'? 

2d. What is the effect and operation of the last section of the act 
of the 30th of March, 1805, for the endowment of Union College, 
since the adoption of the amended constitution 1 

3d. Can the Legislature rightfully amend or repeal the clause of 
the act respecting Union College, passed during the last session of 
the Legislature, the trustees having filed their consent thereto in the 
Secretary's office 1 

I understand the Regents, in their communication to the Legislature, 
to contend that the act (2d R. L. 261) by fair interpretation gives 
them authority co-extensive with the known technical meaning of the 
term " visit" and "visitation," equivalent to the powers of general 
visitors at common law ; but under qualifications and exceptions which, 
they seem to admit, withholds from them all power of interference in 
the concerns of the college, except the powei of exacting from the 
trustees a report to them, of the state and situation of the revenues 
of the college ; for they say, u they conceive their authority co-ex- 
tensive with and equivalent to the powers of general visitors at com- 
mon law, except in so far as these powers are restrained and qualified 
in regard to the election, appointment and removal of officers, the 
prescribing ordinances and statutes to the institutions which they in- 
corporate, and in some other points of jurisdiction incident to the of- 
fi ce of general visitor, which are specified in the act." 



36 [Assembly 

By the concession then of the Regents, their authority of visitors is 
reduced to very narrow limits indeed ; they disclaim all the essential 
powers of visitors as at common law, insisting merely on that of 
requiring from the trustees a report of their financial concerns. 

It is singular that a power so useless, from the want of other powers 
to enforce obedience or to apply remedies, if the trustees have abused 
their trusts, should be claimed, or become the subject of a grave com- 
plaint to the Legislature. 

But I am clearly of opinion that the Regents of the University do 
not possess in any shape or sense, the authority they claim, or any 
other attribute of power, belonging to visitors, at common law, except 
in the single instance of appointing a president to the colleges and 
principals to the academies incorporated by them, in cases where the 
trustees It ave those offices vacant for one whole year. To understand 
the questions on which my opinion has been asked, it is necessary to 
take a brief review of several statutes, and of the charters to King's, 
now Columbia College, and to Union College. 

The Legislature, by an act of the 1st of May, 1784, for causes set 
forth in the recital, divested the governors of King's College in New- 
York,of all their estate real and personal ; of all their corporate rights 
and powers, and of all authority vested in them by the charter of the 
31st of October, 1754, to govern that institution, and vested all their 
estate and all their authority in the Regents of the University, who 
were constituted and appointed by that act ; the Regents were by the 
same act vested with power to ordain and make ordinances and by- 
laws for the government of the several colleges which might compose 
this University, with power to appoint the presidents and all the of- 
ficers thereof, to manage such estate as they might be invested with, 
to fix the salaries of the officers and to remove them from office; they 
w r ere authorized to found schools and colleges and endow them, with- 
the right to visit; and such schools and colleges were declared to be 
a part of the University, and as such, subject to the control and direc- 
tion of the Regents. 

It appears by the recitals contained in the charter to King's College, 
that it was endowed out of the avails of lotteries granted by the Le- 
gislature, and of a donation in land from the corporation of Trinity 
church in New- York ; the persons named in this charter were incor- 



No. 213.] 37 

porated as governors of the college ; a right of succession was grant- 
ed to them forever, with the usual powers of a corporation ; and ex- 
press powers were granted to them to appoint the president, professors, 
fellows and tutors, -to fill all vacancies, to remove officers for misbe- 
havior, to direct the course of study, and make such laws, ordinances, 
and orders, for the better government of the college and students and 
ministers therein, as they might think best. 

The act of the 13th of April, 1787, repealed the act of the first of 
May, 1784, arid it was under this statute that the Regents granted the 
charter to Union College. This act constituted a new board of Re- 
gents and entirely remodelled their powers ; it ratified and confirmed 
the charter to the governors of King's College, changed the name to 
Columbia College ; appointed trustees to the college, and vested in 
those trustees, all the property, and estate and powers which previous- 
ly, and by the act of the 1st of May, 1784, had been vested in the 
Regents ; and it also vested in the trustees, all the powers, rights and 
privileges which were granted to and vested in the governors of King's 
College by their charter, excepting such immaterial alterations as had 
become necessary in consequence of the change of government from 
a colony to a state. 

The 7th section of this act of April 13th, 1787, provides that any 
citizens, or bodies corporate being minded to found a college, shall 
make known to the Regents, the place where, the plan on which, and 
the funds with which it is intended to found and provide for the same, 
and who are proposed as the first trustees; and if it shall appear to 
the Regents, that the plan and propositions are fully executed, they 
shall declare such college to be incorporated by such name as the 
founders signify and with such trustees as they shall name, not ex- 
ceeding twenty-four nor less than ten ; and that such colleges should 
have perpetual succession and enjoy all the corporate rights and privi- 
leges enjoyed by Columbia College as therein after mentioned. 

The charter to Union College was granted by the Regents on the 
25th day of February, 1795. It recites that an application had been 
made by Abraham Oothoudt and many others, stating that they were 
desirous to found a college in Schenectady ; that they had made known 
the plan on which and the funds with which it was intended to found 
and provide for the college ; that they had proposed persons as trus- 
tees, and signified that the name of the college should be Union Col- 



38 [ Assembly 

lege — that the plan had been approved of, and that the funds intended by 
the applicants for the use of the college were as duly and sufficiently 
secured and vested as was requisite ; the Regents then declare the col- 
lege founded and established ; that the trustees should be always 
twenty-four ; that they should have perpetual succession, be capable 
to sue and be sued, take and hold real and personal estate, with power 
to appoint a president, professors and tutors,to govern the students, pre- 
scribe the course of study, and tomake such rules, ordinances andorders 
for the better government of the college and of the president and of- 
ficers as the trustees should think best for the general good of the 
same, together with all the corporate rights and privileges which they 
were empowered to grant, and which are the same granted to Colum- 
bia College. 

The claim of the Regents to be visitors, in the common law sense 
of the term, appears to be founded on the third section of the act 
(2d R. L. 261) which is in the same words as the 3d section of the 
act of 1787, (1 Greenleaf, 434) the provision is, "that it shall and 
may be lawful to and for the said Regents, and they are hereby au- 
thorised and required to visit and inspect dill the colleges, academies and 
common schools, which are or may be established in this state ; ex- 
amine into the state and system of education and discipline therein, and 
make a yearly report thereof to the Legislature — and also^ to visit 
every college in this state once a year by themselves, or by theii com- 
mittees, and yearly to report the state of the same, to the Legislature, 
and to make such by-laws and ordinances, not inconsistent with the 
Constitution and laws of the State, as they may judge most expedient 
for the accomplishment oj the trust hereby reposed in them?'' 

The first question which naturally presents itself is, who are, in 
the common law meaning of the term, visitors of Union College. 
And it seems to me that the Regents themselves have solved this 
question; for, adopting the law as laid down by judge Blackstone in 
his Commentaries, they say " that in eleemosynary corporations, which 
class includes colleges and all other incorporations for the purposes 
of education, the founder by virtue of his endowment, is of common 
right the legal visitor, to see that the property is rightly employed; 
but if he has appointed and assigned any other person to be visitor, 
then the person so appointed is invested with all the founder's pow- 
er, and in every instance has authority to effectuate the intention of 



No. 213. 1 39 

the founder as far as he can collect it from the nature of the institu- 
tion;' 5 the Regents might have added, from the high authority of the 
same commentator, that the fundatio perficiens or the dotation of the 
funds, in which sense the first gift of the revenues is the foundation, 
and he who gives them is in law the founder, and that it is in this 
sense that a man is called the founder of a college or hospital. 

Who then were the founders of Union College, and as such be- 
came of common right the legal visitors? This question is answered 
by reference to the charter to Union College; Mr. Oothoudt and his 
associates are acknowledged, by that instrument, to have furnished 
the funds, to have invested and secured them for the express purpose 
of founding and providing for the college, and the college received 
no funds from the State, nor any promise of them, until after its in- 
corporation. 

Mr. Oothoudt and his associates being then the founders of the col- 
lege, by making the first gift of its revenues, would be the legal vis- 
itors, had they not assigned their right, which it is perceived may be 
assigned. Their application to the Regents to be incorporated, their 
designation of twenty-four trustees, in whom were to be invested all 
the estate real and personal, given to the college, with power to di- 
rect and manage all its concerns, amounted to an absolute assignment 
of the rights of the first founders to any visitatorial powers, and these 
rights became vested in the trustees as a body corporate. If this 
proposition requires support, it will be found in the decision of the 
supreme court of the United States in the case of Dartmouth College 
v. Woodward. (4 Wheaton, 518.) I shall rely much upon that case 
in the course of this opinion. That case was most elaborately argued 
by learned and distinguished jurists; the opinions expressed by several 
of the judges discover great research, and in short they add to the 
high reputation and character which that court has uniformly main- 
tained. I rely upon that case, as settling the law upon several of 
the points arising in this case; that court possesses jurisdiction in 
the last resort, in every case involving a construction of the constitu- 
tion of the United States, when the decision in any court, whether of 
a State or of the United States, is adverse to the claim set up by any- 
party under that constitution, their decision then upon any such case, 
becomes paramount and controlling upon all other courts. 



40 [Assembly 

That case shows that the charter to Dartmouth College, was grant- 
ed upon an application to the crown, upon a statement that contribu- 
tions had been made by private individuals for a charter for a religious 
and literary institution, the court adjudged that it was a private 
eleemosynary institution, a charity incorporated for the preservation 
of its property and the perpetual application of that property to the 
objects of its creation, that the founders were represented by the cor- 
poration, who was the assignee of their rights, and stood in their 
places, that in every literary or charitable institution, unless the ob- 
jects of the bounty be themselves incorporated, the whole legal inter- 
est was in the trustees and could be asserted only by them; and that 
where a charter vests the usual power of government in trustees, they 
thereby become the visitors, and the founders retain no visitatorial 
powers, although the king be the founder. 

It being then admitted by the Regents that the trustees of Union 
College, have all the essential powers of visitors, and it being estab- 
lished by the case just cited, that they possess the entire visitatorial 
powers, it seems to be claimed by the Regents, that nevertheless, 
they have under the act a portion of those powers, the right of de- 
manding from the trustees an exposition to them of their financial 
concerns. In the call they have made upon the trustees, they require 
them, among other things, to report as to the application of the in- 
terest of $35,000, which in and by the act of the 30th of March, 1805, 
was directed to be applied solely and exclusively to the support of 
professorships in the college, arid also as to the interest of $10,000 
which by the same act was directed to be applied, one half in estab- 
lishing and maintaining a classical library, and the other half towards 
defraying the expenses of indigent students, and how the principal 
sums were invested. 

A visitatorial power which consists in the right to require an exhi- 
bition of the funds of a corporation, but without any authority to 
correct abuses, if any exist, is conceived to be an anomaly, it would 
require the most explicit language to constitute the right claimed, 
when it is considered that the funds with which the college was en- 
dowed, at first, were private benefactions, with which the public had 
no concern, and that there existed no pledge on the part of the public 
further to endow the college, or contribute towards its funds. 



No. 213.] 41 

The object, extent and end of the authority conferred on the Re- 
gents by the third section of the statute, are well marked and defined; 
they are to visit and inspect all the colleges, academies and svhools, ex- 
amine into the state and system of education and discipline therein, 
and make a yearly report thereof to the Legislature; and also to visit 
every college in this State once a year by themselves, or by their com- 
mittees, and yearly to report the state of the same to the Legislature. 
The object of visiting and inspecting, is for the purpose of examining 
into the state and, system of education and discipline, without any 
power to alter or change either of them; and their whole corrective 
power consists in reporting to the Legislature The Regents lay 
great stress on the words " visit" and "visitation," as though these 
words necessarily imported visitatorial common law ..powers; but these 
words must not be insulated and construed without reference to the 
context; there we find the sense in which they are used; a local vis- 
itation and a personal examination into the state and system of edu- 
cation and discipline, with the sole view of informing the Legis- 
lature, whether they are good or bad. The Regents seem to think 
that their powers thus limited are so insignificant, that no one will 
seriously contend they are not more extensive. 

It is believed not to be a legitimate deduction of power, to infer a 
larger power from a less one expressly given, because the possessor 
of the smaller power may think it insignificant. The Legislature 
were certainly of a different opinion, for in the 16th sec. of the act 
of 1787, we find them thus speaking, " and for the encouragement 
of such academies, and to render them more useful and respectable, 
the Regents of the University shall be visitors of such academies and 
the chancellor and vice-chancellor shall, as often as they see proper, 
visit such academies to inquire into the state and progress of literature 
therein?' 1 

The Legislature thought, that visits from such respectable men as 
the Regents would have the effect to render these institutions more 
useful and respectable, by inciting the students to application, and by 
stimulating the instructors in their duty towards their pupils; and it 
is well known that nothing has a more salutary influence upon such 
institutions than periodical visits from highly distinguished literary 
men. 



42 [Assembly 

The act of the 30th March, 1805, requires the trustees annually to 
exhibit to the Legislature a true and circumstantial account of their 
proceedings, in relation to the disposition and application of the inte- 
rest that should accrue from the sum of $35,000 directed to be placed 
at interest on landed security, or invested in public stock,* which in- 
terest was for ever thereafter to be applied exclusively to the support 
of professorships in the college. This act authorised the raising, by 
lotteries, of $80,000 for the use and benefit of the college, but re- 
quired no report from the trustees as to any other part of the bene- 
faction. It cannot, I think, be seriously asserted, when the donors 
require no account of the expenditure of the moneys given, that any 
other persons have a right to exact an account ; much less can it be 
asserted, that when the donors require an account to be given to them^ 
that any other persons have a right to intervene. 

When the authority conferred on the Regents by the act of the 1st 
of May, 1784, is contrasted with the power given to them by the 
act of 1787, it must be evident that the Legislature intended materi- 
ally to abridge and curtail their powers by the latter act. 

That the Regents have no visitatorial powers of the nature claimed 
by them, may be inferred from the circumstance, that whatever juris- 
diction was conferred, extended as well to schools and academies as 
to colleges ; the Regents had no power given to them to incorporate 
schools, and at that period they were wholly private institutions, 
maintained at individual expense, and it will scarcely be insisted that 
the Regents had visitatorial powers over them in the common law 
senses The Regents were authorised to incorporate academies, but 
the trustees of academies had, by the 14th section of the act, the sole 
and absolute control and management of them and of their revenues, 
excluding all pretence of claim on the part of the Regents to be 
visitors of these institutions in the sense now contended for. From 
all these considerations, I can have no doubt, that the Regents have no 
powers under the statute, as visitors in the common law sense; and that 
they have no authority to require from the trustees of Union College 
a report of their revenues or finances ; and I am of the opinion that 
the trustees of Union College possess all the common law authority 
of visitors to that institution, except in the single particular of filling 
the presidency when improperly left vacant. 

* This investment was, by a subsequent act, authorised to be made in the Mohawk 
Bank. 



No. 213.1 43 

I answer, to the second question, that the last section of the act of 
the 30th of March, 1805, having declared that the grant of the lot- 
teries was upon the express condition and stipulation, that the trustees 
of Union College should make application under their common seal, 
to the Regents, for an amendment of the charter of the college, so as 
to reduce the whole number of trustees to twenty-one, and so as to 
constitute the Chancellor, the Justices of the Supreme Court, the 
Secretary, the Comptroller, the Treasurer, the Attorney-General, and 
the Surveyor-General, for the time being, ex officio, trustees of the 
college, and so as that the Regents shall fill all vacancies of the trus- 
tees from time to time ; and authorising the Regents, on such appli- 
cation, to amend the charter of the college accordingly ; declaring 
also that the vacancies should not be fil-led till the number of trustees, 
exclusive of the officers of State, should be reduced to ten; and the 
trustees having made such application, and the charter having been 
amended accordingly, the amended charter became equally inviolable 
w r ith the one first granted. It has been, however, violated by the re- 
duction (under the amended Constitution) of the number of the Judges 
of the Supreme Court from five to three, which reduced the number 
of trustees from 21 to 19; and thus the college, without any agency 
or fault of theirs, has been deprived of a part of the trustees stipu- 
lated for in their amended charter, and a part of that description of 
trustees which, by stipulation, were to become and remain the ma- 
jority. 

In the case of Dartmouth College vs. Woodward, it was decided, 
that in private eleemosynary institutions, the body corporate, as pos- 
sessing the whole legal and equitable interest and completely repre- 
senting the donors, for the purpose of executing the trust, had rights 
protected by the Constitution of the United States ; and that the acts 
of the Legislature of New-Hampshire were repugnant to the Consti- 
tution. One of the acts thus pronounced to be repugnant to the 
Constitution, had increased the number of the trustees, which was 
limited by the charter to twelve. Chief Justice Marshall said, that 
there was no essential difference between acting directly and acting 
through the agency of trustees, and that the act, by increasing the 
number, operated a material change in the grant, and was subversive 
of the contract, on the faith of which the property was given. It 
makes no difference, in my opinion, that the number of the trustees 
were diminished instead of being increased, by the operation of the 



44 | Assembly 

amended Constitutipn ; nor did it in the opinion of the Judges of the 
Supreme Court, for Judge Washington, in the case referred to, said, 
" that if a law increases or diminishes the number of trustees, they 
are not the persons whom the grantors agreed should be the managers 
of the fund." The trustees of Union College surrendered, on speci- 
fied conditions, their right under their first charter to fill vacancies in 
their board, and this right was to be transferred to the Regents, who, 
in process of time, and under said specified conditions, were to ap- 
point all the trustees not so ex officio; but as the whole number of 
trustees had been reduced by the new Constitution to nineteen, instead 
of twenty-one, as stipulated for ; and as the nine ex officio trustees 
would become a minority, and the ten trustees appointed by the Re- 
gents would become a majority, the entire effective control over the 
concerns of the college would be taken from the State officers and 
placed in the hands of the trustees deriving their appointments from 
the Regents, contrary to the express stipulation of the amendment of 
the charter of 1805. This was an essential change of the compact, 
and as it would seem from the guarded provisions in the amended 
charter, contrary to the interests and the intention of the college. It 
is no answer to this to say, that it would make no difference to the 
college, or that by the operation of the amended Constitution, the 
injury is irremediable , the college have a right to say, that the com- 
pact is broken, that it is different from that on which they surrender- 
ed up the right of appointing their own trustees, and that now their 
concerns are put under the government of a different body of men. 

Such being the effect produced by the amended Constitution, it 
will not, I presume, be said, that this case is distinguishable from that 
of Dartmouth College v. Woodward, because the charter was there 
altered by an act of the Legislature, and here, by a convention of 
delegates assembled to amend the Constitution. 

If a convention can violate the Constitution of the United States, 
by impairing the obligation of contracts, or by an act of attainder, or 
an ex post facto provision, then indeed, an easy method exists, of ab- 
rogating and annulling the inviolability of contracts, and rendering 
the constitutional barrier a dead letter. If such a doctrine could be 
successfully maintained, the State authorities would easily triumph 
over the destruction of a most sacred and valuable provision in the 
national compact. 



No. 213.] 45 

The 10th section of the first article of the Constitution of the Uni- 
ted States provides that " no State shall pass any bill of attainder, or 
ex post facto law, or law impairing the obligation of contracts." A 
convention represents the sovereign authority of the State, as eman- 
ating immediately from the people ; their acts are the acts of the 
State, and their acts are rules of conduct prescribed by the supreme 
power of the State, and this is the definition of municipal law. I 
cannot, therefore, entertain a doubt that the new Constitution, by re- 
ducing the number of the Judges of the Supreme Court, and thus 
changing the goverment of Union College into other hands, than those 
stipulated for, did subvert and impair their amended charter, contrary 
to the constitutional inhibition. 

Whether the impaired charter subsisted and was binding on the 
college, is a question now merely speculative, since the proffer con- 
tained in the clause in the act of the last session, has been accepted. 
" The trustees, admitting or waiving the question of right, so far as the 
State officers are concerned, have merely contended that the right of 
filling vacancies in their hoard had never yet vested in the Regents, and 
that the adoption of the new State Constitution had rendered it impos- 
sible that such right should ever invest." I should, however, strongly in- 
cline to the opinion that the college was fully restored to, and rein- 
vested with its original charter ; because the State had violated one 
of the conditions of the amended charter, and were incapable, with- 
out the consent of the college, of repairing the injury; and this being 
a violation, by one of the parties to a compact, of an essential part 
of it, without the fault or participation of the other party, such other 
party would be released from the observance of the condition which 
was an equivalent for the part thus violated ; and these mutual stipu- 
lations, forming parts of the same contract, which was separable from 
the first charter, and the one party having absolved himself from the 
observance of his stipulation, the other party was also absolved; at 
all events, the State was bound in good faith, to apply a just remedy, 
and such a one as would be acceptable to the college ; and this was 
done by the clause of the act of the last session. 

This clause is contained in an act relative to the city of Schenecta- 
dy ; it is preceded by a recital, that by the existing charter of Union 
College, the Chancellor, the Judges of the Supreme Court, the Secre- 
tary, the Comptroller, the Surveyor-General, the Attorney General and 
the Treasurer, are ex officio trustees thereof, and that by reducing the 



46 [Assembly 

number of the justices of the supreme court, under the present consti- 
tution, the number of the trustees will be reduced ; it is then enacted, 
that the Governor and Lieutenant Governor, for the time being, shall 
be added to the number of trustees ex officio already belonging there- 
to ; the trustees not ex officio to be and remain the same in number as 
they at present exist in said board, and vacancies hereafter occurring 
therein, to be filled in the same manner as vacancies have been here- 
tofore filled ; provided the board of trustees of the college shall con- 
sent thereto, and file such consent in the office of the Secretary of 
State. 

I perceive nothing ambiguous, as is suggested by the Regents, in 
this enactment : the only facts to be explained were, in what man- 
ner vacancies have been filled, and what was the then existing num- 
ber of trustees. These inquiries would naturally suggest themselves 
upon the slightest consideration. If the Legislature did not know the 
state of these facts and did not see fit to make the inquiry, surely 
their neglect to inform themselves can afford neither ground to im- 
peach the conduct of the trustees, or for amending or repealing the 
enactment, and I am of opinion that they cannot rightfully do either. 

In the case of Dartmouth* College vs Woodward, such a charter as 
the one granted to Union College was pronounced by the court to be 
a contract, made on valuable consideration, for the security and dispo- 
sition of property within the letter and spirit of the constitution of the 
United States, and that its obligation could not be impaired without 
violating the constitution. In the case of Fletcher vs. Peck, 7 Cranch, 
135, the supreme court of the United States also decided, "that when 
a law is in its nature a contract, when absolute rights have vested 
under that contract, a repeal of the law cannoi divest, those rights." 
The Legislature have the same right to amend or repeal every act cre- 
ating private corporations for the purpose of holding and managing 
property, such as charters to banks, and insurance companies, without 
the consent of such corporations, as they have to amend or repeal the 
clause of the act of the last session. The cases are not distinguisha- 
ble ; and I forbear to make a single comment upon the consequences 
of an attempt to exert such a power by the Legislature. 

In the act of the 30th of March 1805, and in the clause of the act 
of the last session, which related to Union College, the Legislature 
have evinced their sense of the sacred and inviolable nature of such 



No. 213.] 47 

charters : in both cases they have required the consent of the trustees 
prior to the enactments taking effect, and I must say, that the sugges- 
tion contained in the communication from the Regents to the Legisla- 
ture, rather inviting to an amendment or repeal of the clause in the 
act of the last session, after the trustees had filed their consent to it, 
has excited in my mind no little surprise, considering the high source 
from which such a recommendation proceeded. 

A. SPENCER. 
Albany, May 8, 1823. 

Upon mature deliberation, I fully concur in the above opinion. 

JONAS PLATT. 
Utica, 29th May, 1823. 



Opinion to the Trustees of Union College, in their controversy with the 

Regents. 

After mature reflection, we cannot hesitate to agree, in all essential 
points, with the opinion of the late chief justice, on the subjects in 
controversy between the Regents of the University and the trustees 
of Union College. Indeed it seems to us, that the greater part, if not 
the whole of that controversy is settled by the case of Dartmouth Col- 
lege, vs. Woodward, 4 Wheaton, 518, which as to the right of the 
Legislature to repeal the law of Feb. 7, 1823, is of indisputable and 
paramount authority, and as to the visitatorial powers of the trustees, 
is in strict conformity with the acknowledged English law on the sub- 
ject. The charter of Dartmouth College, as set forth by Mr. Justice 
Story, (p. 677, 8, 9, 680) in its important points as to this controver- 
sy, very much resembles that of Union College, and when it has been 
decided that the charter of the former is a contract, the obligation of 
which cannot be impaired by a State law, it is impossible to escape 
from the conclusion, that the same principle is a protecting shield to 
the existing, as it would have been to the original charter of Union 
College. Previous to the incorporation of this college, the board of 
Regents were remodelled with all their present powers ; by the 7th 
section of the act to which they owe their existence and authority, 
provision is made for incorporating eleemosynary colleges on private 
foundations. (2d vol. Kent &RadclifTe'sed. 236.) The mode there 



48 [Assembly 

indicated was pursued by the founders of Union College, and a char- 
ter was granted to the trustees named by the founders. By it they 
were to enjoy all the corporate rights and privileges enjoyed by Col- 
umbia College. Some of those are set forth in the very next section? 
one of which is that "no persons shall be trustees of the same in vir- 
tue of any offices, characters or descriptions whatever," and another 
is, by the charter of that college, that the trustees shall have the pow- 
er to fill up the vacancies in their own body. These were among the 
terms upon which the original founders chose to endow Union College. 
Who then had a right to vary those fundamental terms? Clearly the 
Legislature had not; it could not by the utmost exercise of its authori- 
ty, have made any persons trustees, in virtue of any office, characters 
or descriptions whatever ; nor could it have reduced the number of 
trustees below 24, nor of those elected to ten, nor have taken from 
that body, or given to the Regents the power of filling up the vacan- 
cies that should happen after the elected trustees were reduced to ten. 
The Legislature very probably felt its own incompetency to do this 
and made it a matter of bargain and compact with the trustees, that 
they should apply to the Regents for such an alteration in their charter, 
which was done, and granted accordingly. The amended charter is 
then clearly a compact, and has every characteristic of such a con- 
tract as is protected by the constitution of the United States. That 
contract was violated by the adoption of the new constitution, for cer- 
tainly diminishing the number and altering the proportions of the con- 
stituent parts of the board are as much breaches of the contract, as 
was increasing their number in the case of Dartmouth College. (See 
Judge Washington's opinion, 4th Wheaton, 662.) The Legislature 
considered the assent of the trustees necessary to the validity of the 
law by which the original charter was changed, and they judged right- 
ly. By a compact made on valuable consideration, a limited right 
was thus acquired in derogation of the original charter, to make the 
Chancellor, the Justices of the Supreme Court, the Secretary, the Comp- 
troller, the Treasurer, the Attorney-General and the Surveyor- General, 
ex officio trustees. But the compact proceeded no further, and with 
the exception of those specified officers, the original charter, as to the 
inhibition of ex officio trustees, remained in full force. Could, then, 
the Legislature, in despite of the positive provisions of that charter, 
u that no person shall be trustees of the same in virtue of any offices, 
characters or descriptions whatever" by any exercise of its own au- 
to rity, have made the Governor and Lieut. Governor ex officio trustees? 



No. 213.] 49 

The case of Dartmouth College expressly answers in the negative* 
And if they could not do it in the first instance, how can they possi- 
bly accomplish it now, by any modifying or explanatory act not as- 
sented to by the trustees'? As the Legislature could not remedy this 
defect by its own act, what was to be done? A new contract was to 
be made, and for the purpose of making it, a new consideration was 
to be given. 

The trustees and the Legislature did not, perhaps, judge very erro- 
neously, if they supposed (and it may have entered into their reflec- 
tions) that the right of electing the trustees (and not merely ten, but 
twenty-four) had reverted to the board. The sentiments of Chief 
Justice Spencer so strongly concurring with what we also entertain 
on that point, it is not extravagant at least to say, that the question 
was very fit to be settled by compromise and arrangement. That 
was then effected by a new contract. The State retained what it 
had probably lost, the right of having eleven ex officio trustees, (two 
of them entitled only by the new contract) and it confirmed to the 
trustees a part, and only a part, of what they had probably regained, 
the right of electing and filling up vacancies of ten elective trustees. 

The committee of the Regents, however, in their report, say that 
it was not the intention of the Legislature to restore that power to 
the trustees, and they vouch the private communications of several 
members of that body. We know of no power competent to insti- 
tute an inquiry into that fact, or to act upon it if proved. The statute 
itself exhibits no proof of indiscreet and improvident legislation, but, 
when well considered, the very reverse ; and by the filing the consent 
of the trustees pursuant to its provisions, the law, which was previ- 
ously imperative, passed into a contract, which thereby became obli- 
gatory on both parties. It is then fully as important a consideration, 
as to the immutability of that contract, how the trustees understood 
it, as how the Legislature did. There is no allegation or pretence of 
mutual mistake ; and certainly if it were a private contract, neither 
party could undo by his own act, nor could a court of equity effect it. 
As a contract made by the State, it is equally incapable of being 
changed by the State, without the consent of the other contracting 
party. In the case of Fletcher vs. Peck, 6 Cranch, 87, a law came 
under discussion, unquestionably improvident, and fully proved to 
have been procured by corruptiion. A subsequent Legislature of 

[Assembly, No. 213. | 4 



50 [Assembly 

Georgia, penetrated by a sense of the fraud and iniquity by which it 
was obtained, repealed it; but the supreme court of the United 
States considered that repeal a nullity; and Ch. J. Marshall says, 
(p. 135) "when, then, a law is in its nature a contract, when abso- 
lute rights have vested under that contract," (and they undoubtedly 
have vested in the trustees of Union College by the act of last ses- 
sion) " a repeal of the law cannot divest those rights." 

This principle as well as the authority of the case of Dartmouth 
College, seems to us fully to justify the opinion we entertain, that the 
repeal or modification of the law of last session, without the consent 
of the trustees, or any explanatory act concerning it, without the 
same consent, would be unconstitutional and void, and perfect 
nullities. 

The next question is as to the visitatorial powers claimed by the 
Regents over Union College. These powers are not supposed to 
depend on any particular provisions of the charter of that college, ; 
but to be derived from the third section of the act of the 13th April, 
1787. If the Regents possess such powers over Union College, they 
possess them over every other college, every academy, and every in- 
corporated school now in the State, or that may at any time hereafter 
be instituted within its limits. This is an authority of uncommon ex- 
tent ; and before it be allowed to any one body of men, it becomes 
a matter of public importance to inquire in what visitatorial power 
consists. 

The visitors of every incorporated institution, are a domestic tribu- 
nal, possessing a jurisdiction from which there is no appeal to the 
regular courts of justice, or indeed to any constituted authority what- 
ever. In order that we may not seem to overrate the law, we shall 
avail ourselves of the words of Ld. Holt, in his very elaborate opin- 
ion in the case of Philips vs. Bury, which is now universally allowed 
to contain all the doctrine on this point. It was first published in 
Skinner's Reports, (475) who was himself of counsel in the cause. 
We shall however cite it from D. & E. as that book is the most 
easily accessible. 

Ld. Holt says, (2 D. & E. p. 349) "It is clear that where any one 
is visitor of a college, he has full and complete power to deprive and 
remove any member of the college qua visitor." In p. 35] he says, 



No. 213.J 51 

"The next point is no more than this — whether the justice of this 
sentence be examinable in any of the courts of common law 1 That 
is, first, whether the sufficiency of the sentence as to the cause, be 
examinable in the common law courts; and secondly, whether the 
truth of that cause, suppose it to be good and sufficient to ground 
the sentence, if true, can be inquired into and examined. And I 
think the sufficiency of the sentence is never to be called in question , 
nor any inquiry to be made here into the reasons or causes of the de- 
privation. If the sentence be given by him that is visitor , created so 
by the founder, or by the law, you shall never inquire into the validity 
or ground of the sentence." 

Again, in 353, in answer to the question " What is the visitor to 
do ?" he says, u He may expel and he may deprive." The only ques- 
tion there was, "who is visitor $' for it is " agreed on all hands that 
he may deprive. But you will say, the visitor hath no court, and it is 
unreasonable to conclude a man by the sentence of one that hath no 
court. It is (I say) not material whether he hath a court or no — all 
the matter is, whether he hath jurisdiction ; if he hath jurisdiction 
and cognizance of the matter and person, and he giveth sentence in the 
matter, his sentence must make a vacancy, be it never so erroneous ; 
but there is no appeal, if the founder hath not thought fit to direct 
one. That an appeal lieth to the common law courts of England, is 
without precedent." Again, (p. 357) " It is by the constitution of 
the college, inseparably incident to their places that both head and 
members should submit to the visitation, and contumacy is held a good 
cause of deprivation." " It was held a good cause in Bird & Smith's 
case and in the case of Allen vs. Nash, quod fiuit refractorius." Again, 
(p. 358) "And contumacy, I take it, is a cause of forfeiture of his (the 
Rector's) office ; being an offence against the very essence of his place, 
whereby he is made subject to the power of the visitor ; and if he 
go about to evade, or contumaciously refuse to submit to his power 
and authority, it is an offence against the duty of his place, and a 
good cause of deprivation." 

Here then is a ready opportunity for the exercise and the testing of 
the Regents' visitatorial powers. If they exist, as claimed, the trus- 
tees of Union College have been guilty of contumacy, and the Re- 
gents may amove them without the possibility of appeal to any tribu- 
nal in the land ; and if they do not themselves possess the power of 
filling vacancies, they may at least enable the great officers of the 



52 [Assembly 

State to fill them in their discretion. That jurisdiction was indeed 
once possessed by their predecessors, under the act 1st May, 1784 ; 
at least as to the colleges that might compose the university, and no 
others appear to have been then contemplated, and it may, therefore, 
well have occurred to the jealous republicans and reflecting states- 
men of that day, that the authority to remove, without appeal, the 
officers, tutors, heads and trustees of every seminary of learning in 
the country ; of directing the studies ; of controlling the education, 
and thus swaying the minds of the growing generation, when vested 
in one body, might, in times of trouble, make that body an irresistible 
agent of political power. They may have considered that although 
such a summary authority may be necessary for the well governing 
of literary incorporations, it should be broken up and divided among 
differently constituted bodies, which, from the incongruity of their 
origin and the diversity of their views, would be incapable of coa- 
lescing for any dangerous purpose ; and if they presumed (what we 
have no doubt is the fact) that a single board of such power over the 
preceptors of youth and their education, would not be tolerated, even 
in the monarchial government of England, they very probably deem- 
ed it inconsistent with the genius and principles of our Republic. 
Be that as it may, for some reasons or other, they annulled the pow- 
ers given by the act of 1784, and on the 13th April, 1787, remodel- 
ed the board of Regents, and as we think, with very different and 
much more limited authority. 

The present Regents, indeed, contend it still exists, and is granted 
by the words (2 Kent & RadclinVs ed. p. 235) "That it shall and 
may be lawful to and for the said Regents, and they are hereby au- 
thorized and required to visit and inspect all the colleges, academies 
or schools, which are or may be established in this State, examine 
into the state and system of education and discipline therein, and 
make a yearly report thereof to the Legislature ; and also to visit 
every college in this State once a year, by themselves or by their 
committees, and yearly report the state of the same to the Legisla- 
ture," and also by the provision in the 19th section of the same act, 
(p. 341) and the 17th section of the new revised law, (2 vol. p. 365) 
that when an academy shall be changed into a college, such college 
shall "be subject to the like rules, regulations, control and visitation 
of the Regents, as other colleges mentioned in this act." They say, 
" The words visit and visitation, contained in the above extracts, the 



No. 213.J 53 

Regents have conceived to be used, not merely in their common ac- 
ceptation, but being terms of known legal import ond effect, to have 
been introduced into the statute with reference to their technical sig- 
nification." If, as the Regents also say, " The framers and revisers 
of the act well knew that at common law, all corporations were lia- 
ble, as a necessary incident to their creation and existence, to be visit- 
ed in the technical acceptation of the term," &c. and therefore, that 
the words visit and visitation are to be considered as used in their 
technical signification, it would seem a necessary consequence from 
the same course of reasoning, that the framers and revisers of the 
act, and the Legislature itself only meant to apply those words where, 
by the common law they were entitled to apply them ; that they only 
meant to create visitors for such institutions, as by the common law, 
it belonged to the State to visit. Now that would necessarily exclude 
all eleemosynary, corporations on private foundations, (and such Union 
College is admitted to be by the Regents themselves) because the 
visitation of them of common right belonged to the founders and 
their assignees. 

Instead, therefore, of inferring so extensive a power from one or 
two sentences containing general and ambiguous words, a legislative 
enactment should be produced, of the most explicit and unequivocal 
character, to lead us to believe that it was intended to make so great 
a change in the common law, and so violent an infringement on the 
most ancient and immemorial rights of the private founders of chari- 
table corporations, as to takeaway from them and their heirs, or those 
of their appointment, the power of visiting the charities they called 
into existence, for the purpose of vesting it exclusively, and in every 
instance, in a body appointed by the State. That, however, is the 
construction of the statute for which the Regents contend, and with- 
out which they can have no visitatorial p ower over Union Collage, or 
any other private eleemosynary corporation. Other reasons also lead 
us to the entire conviction, that the powers delegated by the 3d and 
alluded to in the 19 ih section of their own charter, are no more than 
actual visitings and inspection, as commissioners , for the purpose of 
reporting to, and informing the Legislature of the State of education 
and discipline in the different literary institutions throughout the State, 
and that with regard to colleges they should make such visit once a 
year. This personal visitation and inspection, the Regents seem to 
think, would be an intolerable grevience; and indeed usage and cour- 



54 [Assembly 

tesy appear to have substituted for it annual reports from the different 
colleges, though we are well convinced, that such was not the inten- 
tion of the Legislature. It should however be remembered, that the 
due excersises of even the visitatorial powers they claim, would im* 
pose on them the same burthen; for visitation is always to be performed 
within the bosom of the corporation, and in the place of its corporate 
existence; except, perhaps, where the Lord Chancellor of England is 
ex officio visitor, and visits in his Court of Chancery. A visitor, may 
indeed, in any place, receive complaints, notify the accused, receive 
answers, and issue preparatory summonses and directions for an actual 
visitation; but the forum dome sticum is to be held, and the jurisdiction 
exercised in the home of the corporation. That this inspection, as 
State commissioners, is all that those words contemplate, is, we think 
manifest from the accompanying expressions, which obviously qualify 
its exercise. If the Regnets were general visitors , why should they be 
specially authorized and required to examine into the state and system 
of education and discipline therein? If they were to be the final arbi- 
ters and judges, without appeal on this or any other matter of collegiate 
administration 7 why are they required to make a yearly report to the 
Legislature. 

Independent, however, of all reasoning on the words of the 3d and 
19th sections of their charter, we think there are abundant reasons for 
the opinion we entertain, that the Regents are not, and cannot be visi- 
tors of any eleemosynary college, on a private foundation. By the 
common law, they certainly are not and cannot be so, and whatever 
power they possess, with respect to such institutions, must be derived 
from the respective charters of those bodies, coupled perhaps with the 
express powers of their own charter. How far the Regents are or 
will be the visitors of any colleges they may found themselves, or 
establish under the authority and with the funds of the State, as the 
perficient founder, need not here be discussed, nor whether they are 
visitors of eleemosynary academies incorporated by virtue of that law. 
But if they possess any such power in the latter case, we hold it not 
to have been derived from any authority that the State or Legislature 
can give or could give, but in every instance by the special appoint- 
ment and request of the perficient founder. The incorporation is to be 
granted on the application of the founders and benefactors,. &c, by 
an instrument in writing under hands and seals, to the Regents of the 
University, expressing their request that such academy should be in- 



No. 213.] 55 

corporated, and be subject to the visitation of the Regents. Volenti 
nonfit injuria; and if they choose to request such a visitation, the sur- 
render of their own right to visitation is voluntary, but is also the 
source of the Regents' power. It is, however, a remarkable differ- 
ence, and in our minds affords room for very pregnant observations, 
that in the section relating to the incorporation of eleemosynary col- 
leges on private foundations, no such request is stipulated for on the 
part of their founders, and therefore no such surrender of their com- 
mon law rights required. They are only to make known in 
writing to the Regents, the place where, the plan on which, and the 
funds with which it is intended to found and provide for the same, 
and who are proposed as the first trustees. Whenever the plan and 
propositions of the founders are fully executed, the regents shall de- 
clare, by a corporate act, that the college shall forthwith become in- 
corporated, and it shall thenceforth enjoy the corporate rights and 
privileges enjoyed by Columbia College, 

It becomes, therefore, a matter of importance to enquire, what those 
rights and privileges are? Under the colonial government, the gov- 
ernors of Kings, now Columbia College, were in express terms made 
its visitors. The words of the charter are as follows; " And we do 
further will and grant, that the said governors of the said college for 
the time being, or the major part of any fifteen or more of them con- 
vened as aforesaid, shall have full power and lawful authority to visit, 
order, punish, place and displace the treasurer, clerk, steward, stu- 
dents and other officers and ministers of the said college, and to order, 
reform and redress all and any the disorders, misdemeanors and abuses 
in the persons aforesaid, or any of them, and to censure, suspend or de- 
prive them, or any or either of them, so always that no visitation, act, 
or thing in or concerning the said college, be made or done by any 
other person or persons whatsoever, but as is herein before directed and 
and declared." 

But in 1787, that board was abolished and a new one instituted; 
and (by section 10) " All and singular the power, authority, rights, 
privileges, franchises and immunities, so heretofore granted to and in- 
vested in the said Governors of the College of the province of New- 
York, in the city of New-York, in America, by the said charter, ex- 
cepting (certain matters, not connected with this question,) were 
granted to and vested in the trustees of Columbia College, in the city 



56 [Assembly 

of New-York, and their successors forever," &c, thereby undoubtedly 
making those trustees the visitors of that college, and vesting no 
remnant of that power in the new body of Regents, except where the 
appointment of a president, in case of vacancy, has been too long de- 
layed. 

It seems to us perfectly clear, therefore, that the visitatorial power 
over Union, as well as Columbia College, was vested in its own trus- 
tees, and thus the immemorial rights of the founders are preserved, 
consistently with the common law, and an authority, very formidable 
if concentred in one body, very dangerous if exerted by it, and 
very useless if not called into activity, has been judiciously broken 
up, and distributed among small and separate bodies, each connected 
with a particular institution, incapable of endangering or deranging 
the general system, and not likely to let its powers remain improperly 
inactive. 

The claim of the Regents to be the visitors of Union College, has 
been, for the present, made on the subject of its financial concerns; 
and it may with much force be said that the trustees cannot be visit- 
ors in this respect, as they are the immediate possessors and adminis- 
trators of the fund. We accede to this position as good law; but we 
are equally clear that even in that respect, the Regents are not visit- 
ors of that College, and have no authority to inquire into or direct the 
disposition of its funds. Their own charter in giving a very limited 
authority to inspect and report, touches upon no such subject, and it 
is very remarkable, if the Legislature supposed the Regents to pos- 
sess that power, that the exercise of it should not be left, without 
interference, to that body, which would have a right to decide re- 
specting it without appeal, and would possess exclusive jurisdiction 
on the subject matter. But on the contrary, the act of 1805, ex- 
pressly provides as to $35,000, the interest of which is devoted to 
professorships, that the trustees should annually exhibit to the Legis- 
lature a just, true and circumstantial account of their proceedings in 
relation to the disposition and application of that interest. We would 
not, however, be understood as supposing that the Legislature was in 
that respect visitatorial. It is an unfit and incompetent body to ex- 
ercise such powers. It may then be asked who are the visitors as to 
the funds of the College'? We answer, the courts of law and equity, 
and no other body or person. In case of abuse, interest will always 



ii 



No. 213. | 57 

raise up complainants; besides which, the Legislature has taken care 
to ensure annual information respecting the funds most subject to 
malversation, and it may at anj r time direct the Attorney-General to 
prosecute, and the trustees are answerable, either in law or in equity, 
for every misapplication or mismanagement of the trust funds com- 
mitted to their care. This is the doctrine of the Engli h law, ex- 
tracted from an abundance of cases, and laid down in 2d Kyd on 
Corporations, 187, "where the persons for whose benefit a charity is 
established, are not themselves incorporated, but trustees or governors 
are appointed, as in the case of Sutton's hospital, the governors have 
a kind of visitatorial power with respect to the objects of the charity, 
but where no visitor is expressly appointed, and the legal estate of 
the endowment is vested in the governors, the latter, as to the manage- 
ment of the revenues, are subject to the jurisdiction of the court of 
chancery " 

The same law is very clearly laid down by Mr. Justice Story. 
In the case of Dartmouth College, in 4th Wheat on, 675, he says : 
It is a general rule, that if the objects of the charity are incorpo- 
rated, as, for instance, the master and fellows of a college, or the 
master and poor of an hospital, the visitatorial power, in the absence 
of any special appointment, silently vests in the founder and his heirs. 
But where trustees and governors are incorporated to manage the 
charity, the visitatorial power is deemed to belong to them in their 
corporate character." And again, in p. 676, " where indeed the vi- 
sitatorial power is vested in the trustees of the charity in virtue of 
their incorporation, there can be no amotion of them from their cor- 
porate capacity. But they are not therefore placed beyond the reach 
of the law. As managers of the revenues of the corporation, they 
are subject to the general superintending power of the court of chan- 
cery, not as itself possessing a visitatorial power or a right to control 
the charity, but as possessing a general jurisdiction in all cases of an 
abuse of trusts, to redress grievances and suppress frauds." The 
same learned judge, after setting forth in detail the provisions of the 
charter of Dartmouth College, by which the funds and their manage- 
ment and the legal estate of the lands and revenues were vested in 
the trustees, says, (p. 681,) " the whole government and control, as 
well of the officers as of the revenues of the college, being with his 
(the founder's) consent assigned to the trustees in their corporate 
character, the visitatorial power, which is included in the authority, 



58 [Assembly 

rightfully devolved on the trustees. As managers of the property 
and revenues of the corporation, they we e amenable to the judicial 
tribunals of the state; but as visitors, their discretion was limited only 
by the charter, and liable to no supervision or control, at least, unless 
it was fraudulently misapplied." 

We are therefore very clearly of opinion that the Regents have no 
visitatorial powers over Union College, according to the technical or 
common law sense of the words visit and visitations, used in the act 
by which they are incorporated, except in the single case of appoint- 
ing a President in the event therein provided for; but that in every 
other respect they are entirely vested in the trustees of that institution, 
subject only to the interfering and correcting power of the competent 
tribunals of the country in case of an abuse, or misapplication of the 
funds. 

THOMAS ADDIS EMMET, 
JOHN WELLS, 
DAVID B. OGDEN. 
Mew-York, June 30th, 1823. 



Opinion of the late Chancellor Kent, relative to the controversy between 
the Regents of the University and the trustees of Union College. 

The documentary evidence relative to the controversy between the 
Regents of the University and the trustees of Union College, has been 
submitted to me for my opinion on the following points arising out of 
the case, viz : 

1 st. Whether the Regents possess the visitatorial powers claimed 
by them over Union College, and have a right to require from the 
trustees an exposition of their financial concerns'? 

2d. What is the effect and operation of the last section of the act 
of the 30th of March, 1805, for the endowment of Union College, 
since the adoption of the amended Constitution? 

3d. Can the Legislature, without the consent of the trustees of the 
college, rightfully amend or repeal the clause of the act respecting 



No. 213.] 59 

Union College, passed the 14th February, 1823, inasmuch as the trus- 
tees have filed their assent to the declaration in their charter according 
to the provision of the act. 

The opinions of the late Chief Justice and of Messrs. Emmet, Wells, 
and Ogden, annexed to the case, contain an examination of each of 
those points with great fullness of detail, and perspicuity and force of 
argument, and I do not know that it will be in my power to throw any 
new and strong light upon the case. But as I am requested to state 
the reasons and authorities upon which my opinion may be founded, 
and as the application comes from a source entitled to the utmost re- 
spect, I have conceived it to be my duty to give to the case an origi- 
nal and attentive consideration, and to state briefly the grounds upon 
which my conclusions rest, even though I may be obliged to follow 
in the footsteps of the eminent counsel who have preceded me. 

I. That the right of visitation claimed by the Regents does not be- 
long to them, but resides in the trustees of the college, will very sa- 
tisfactorily appear from an examination of the several statutes relating 
to the subject. 

By the 7th sec. of the act instituting the University, and passed the 
13th April, 1787, the Regents are authorized to incorporate colleges, 
and the colleges so incorported are to enjoy all the corporate rights 
and privileges enjoyed by Columbia College. By the same act the 
charter to Columbia College is ratified and confirmed under the varia- 
tions therein mentioned, and which do not affect the general rights and 
privileges confeired upon it by its former charter. Subject to those 
variations all the " power, authority, rights, privileges, franchises, and 
immunities, before granted to and vested in the governors of the col- 
lege of the province of New-York, are vested in the trustees of Co- 
lumbia College ;" and if we recur to the charter of Kingh College, 
granted in 1754, and referred to in the act, we shall find, that the go- 
vernors of that college had power to build houses and dispose of the 
property, and appoint the president and other officers of the college, 
and fill up their own vacancies as to such members as did not hold the 
trust ex officio, and with power to suspend or discharge the president 
and professors, and other officers, and to prescribe the course of in- 
struction, and make by-laws for the government of the college, and 
enforce the same. 



60 

Under this act of 1787, the Regents granted the charter to Union 
College, in 1795. By that charter it appears that a number of per- 
sons had made the requisite application to the Regents to found Union 
College, and disclosed the plan and the funds with which the college 
was to be endowed, and named the trusteess, and that the funds intend- 
ed by the applicants were duly secured and vested. The trustees 
were accordingly declared to be a body corporate, with perpetual suc- 
cession, and power to hold real and personal estate, and to appoint the 
president and other officers and to prescribe the course of study, and 
to make laws and ordinances for the government of the college, and 
with all the corporate powers and privileges which the Regents were 
empowered to grant. 

By this charter and the statute under which it was granted, the 
trustees of Union College possess the powers of the trustees of Co- 
lumbia College, and they possess the powers of the governors of the 
college, instituted in 1755. They possess, therefore, the entire visita- 
torial pow T ers, incident to the case. The founders of this great pub- 
lic charity are represented by the trustees, who by the terms and 
force of the application under the statute, became the assignees of the 
rights of the founders. The right of visitation in colleges and other 
charitable establishments, resided at common law in the founder or 
first giver of the revenues, and the first applicants in this case, w T ere 
the persons who provided the funds upon which the charter was grant- 
ed — they were the endowers or perficient founders, and would of 
common right have been vested with the right of visitation, if the 
nature of the application, and the provisions in the act under which it 
was made, did not amount to an appointment of the trustees as the 
sole depositaries of that power. 

I think that there can be no doubt that the powers given by the 
charter of 1754, to the governors of King's College, and which have 
been vested by statute in the trustees of Columbia College, and in the 
colleges created by the Regents, were the same efficient powers which 
the common law gave to the founders of eleemosynary corporations. 
These powers authorised the visitor to judge according to the ordi- 
nances of the college, and to suspend or discharge the officers of 
the college, and to hear all appeals and decide definitively upon them ; 
and these are the very powers conferred by statute upon the trustees. 
This visitatorial power the founders and authors of the charity, con- 



No. 213.] 61 

sent to have vested in the trustees by the very application to the Re- 
gents, and the question does not appear to me to be susceptible of the 
least difficulty. It is most fit and proper that this power of visitation 
in the common law sense of it, should be vested in the trustees of the 
respective colleges, because they assemble and act in the very place 
of those institutions, and have in each case a special and direct and 
undivided care of its concerns, and an intimate knowledge of its wants. 
And it is worthy of notice, in the examination of this subject, that 
the act of the 1st of May, 1784, did vest in the Regents this right of 
visitation in respect to Columbia College, and that the Legislature 
afterwards by the act of 1787, recalled that power and transferred it to 
the trustees. This fact is a pretty plain and striking illustration of 
the sense of the government, that the trustees of the college and not 
the Regents of the University, where the suitable body for the recep- 
tion of the power. 

The direction given to the Regents to " visit and inspect all the col- 
leges, academies and schools in this state, to examine into the state 
and system of education and discipline therein, and make a yearly 
report thereof to the Legislature," affords not even a plausible color 
for the assumption on the part of the Regents of any visitatorial pow- 
ers in the technical or common law sense of the power of visitation. 
The words visit and visitation in the 3d and 12th sections of the act 
of 1787, must be taken in reference to the whole subject matter of 
the statute, and the different provisions to which they apply. These 
words are there used in an ordinary and popular and not a technical 
sense. The object of the visit is declared. It is to examine into the 
state and system of education and discipline therein and to make a 
yearly report to the Legislature. The object was merely to give en- 
couragement to the literary institutions, and to quicken their laudable 
zeal by the presence of a portion of the Regents, and to afford to the 
Legislature a correct annual view of the state and progress of public 
instruction. The purpose of the visit in defined. It is confined to 
inspection and examination, and the special mention of this object 
and silence as to all others, is decisive evidence that this was the only 
object within the purview of the law. Expressio unius est exclusio 
alterius. If the high and transcendent common law powers of visita- 
ation was intended, it is granted in respect to all the incorporated 
academies, as well as to the colleges. The grant of the power applies 
equally to all ; and yet, by the 12th section of the act of 1787, it is 



62 [Assembly 

declared that the appointment of " Trustees for each of the academies 
with competent powers to manage their funds, and superintend the mor- 
als and education of the scholars, and the conduct of the principal, 
master and teachers, would greatly conduce to their security and pros- 
perity." The very creation of trustees was thus required for the pur- 
pose of receiving and exercising the power of visitors, and the trus- 
tees of every academy incorporated by the Regents, are, by the 14th 
section of the act of 1787, vested with the usual and requisite visita- 
torial powers. They have power to appoint the officers of the acad- 
emies, and to remove and displace them at pleasure ; to make by- 
laws for the government and discipline of the institutions, and for the 
disposition of the revenues, and the management of every matter and 
thing relating to the academy in their sound discretion. 

Most clearly the whole visitatorial power over the incorporated 
academies resides in the respective boards of trustees, and not in the 
Regents, and yet " for the greater encouragement of such academies, 
and to render them more useful and respectable, the Regents shall be 
visitors of them." But how visitors % The very next part of the 
section explains it : " The Chancellor, vice chancellor, or a commit- 
tee of the Regents, shall, as often as they see proper, visit such acad- 
emies, to inquire into the state and progress of literature therein." 
The whole object and purpose of this visitation on the part of the 
Regents, was simply to give encouragement to the institutions by their 
presence, and to enable them, by an actual examination to lay before 
the Legislature annually, a correct and comprehensive view of our 
literary establishments. This has hitherto been the received and 
practical construction of the powers and duties of the Regents. They 
did formerly appoint one or more of their body to visit the several 
colleges and academies, and the visit and examinations were actually 
made for many years, and were at length discontinued, when the mul- 
tiplication of the institutions rendered the duty burdensome and ex- 
pensive. 

I conclude, therefore, with the entire conviction, that the Regents 
have no visitatorial power over the colleges in the common law sense 
of the term, except in the appointment of a president, when the office 
is left vacant for a year ; and that this power of visitation resides in 
the trustees. The Regents have consequently no right to require the 
trustees of Union College to account to them for the management 



No. 213.] 63 

and disposition of their funds. The management and control of the 
college funds belong to the trustees, in the first instance, and they are 
subject, like all other trustees, to the jurisdiction of the courts of jus- 
tice, and are amenable in chancery for an abuse of trust in the mis- 
application of their funds. Union College had not received any 
funds from the State, nor the promise of any, when their charter was 
granted, and the doctrine of the case of Dartmouth College vs Wood- 
wardy which has been referred to by the other counsel, applies to this 
with peculiar force. Dartmouth College was equally a charitable es- 
tablishment, incorporated upon an analogous contribution, and the 
founders of it were represented by the corporation, who became the 
assignees of their rights, and as the ordinary powers of collegiate 
government were vested in the trustees, they became vested with the 
sole and exclusive power of visitation. And I cannot allude to that 
case without observing, that the principles which are there declared 
and illustrated by the high authority of the supreme court of the 
United States, are applicable to every branch of the case before me. 
When Union College was, by the act of the 30th of March, 1805, 
endowed by the Legislature with additional and liberal funds, the 
trustees were authorised to apply the same in the manner directed by 
the act, and they were required to exhibit annually to the Legislature 
an account of their proceedings, in relation to the disposition and ap- 
plication of the funds. This very provision necessarily implies that 
the trustees were not in any way amenable to the Regents, and the 
assumption of such a control on the part of the Regents is evidently 
erroneous, and repugnant to the policy and the provisions of the law. 
The trustees are liable to be called to an account in chancery, for an 
abuse of trust. This is the true, and the safe, and the efficient visi- 
tation to which they are subject, in respect to their money concerns, 
and they are not subject to any other. 

II. The pecuniary grants by the Legislature under the act of the 
30th of March, 1805, were upon the express condition and stipulation 
that the trustees of Union College should consent to an amendment 
of their charter, in respect to the number and appointment of the 
trustees. They did accede to the condition, and the charter was 
amended in the manner pointed out by the act upon the application of 
the trustees. The charter thus amended became a contract between 
the government and the college, equally binding and inviolable as the 
original charter, and it could not be altered in any respect or degree 



64 [Assembly 

by the Legislature, or by any other representative body acting in be- 
half of the people of this State, without the assent of the college, 
because it rested upon the faith and sanctity of contract. I consider 
this to be a clear proposition, incapable of any just doubt or denial. 
The charter so amended was placed under the protection of the con- 
stitution of the United States, and the case of Dartmouth College^ vs 
Woodward^ may be again referred to as containing principles entirely 
applicable to this case, and decisive upon this point. That case con- 
tained no new doctrine. It was only a full and striking illustration 
of the moral and political obligation of contracts, and of this great 
truth that States were moral persons, capable of becoming efficient 
parties to a compact with individuals, and of being equally susceptible 
of obligation. In the very case of Columbia College, it was once 
attempted in the Legislature to take away from the trustees and to 
vest in the Regents the right to fill up vacancies, but the bill was return- 
ed by the council of revision on the 3d of April, 1807, with objections, 
and it was shown with satisfaction to the House of Assembly, that the 
attempt, without the consent of the corporation, was improper, and 
would impair or violate the charter. I fully concur in the opinion of 
the late chief justice, that it would be equally against the constitution 
of the United States, to impair the obligation of a contract by an act 
of a state convention, as by an act of a state Legislature ; and any in- 
crease or reduction of the number of trustees, without the consent of 
both parties to the charter, is an essential variation of the contract, 
and consequently unconstitutional and void. In the present case, the 
ex officio trustees were reduced, by the act of the convention reduc- 
ing the number of judges, from the number eleven to the number nine. 
This was a very material alteration of their amended charter, without 
their act or consent. The ex officio trustees, from being a majority, 
were reduced to a minority of the board, and by this means the Re- 
gents would, in the appointment of the residue of the trustees, ac- 
quire the entire control of the board, contrary to the condition upon 
which the corporation surrendered their right to appoint their own 
trustees. v 

I am strongly inclined to the opinion, that this inadvertent infrac- 
tion of the charter, as amended under the act of 1805, gave to the 
college the right to reassume and stand upon their charter of 1795. 
It is impossible that the college could be bound to accede against 
their will to such an infraction, and there would seem to be no reme- 



No. 213.] 65 

dy left for them without some new modification of their charter by 
mutual consent, but to recur to their rights under the charter as it 
originally stood. Fortunately, however, such a modification did take 
place under the act of the 14th of February, 1823, which increased 
the number of ex officio trustees by the addition of two, and by de- 
claring that vacancies thereafter occurring in the trustees , not ex officio, 
should be filled in the same manner as vacancies had before been filled. 
This alteration however, was made upon the express condition that the 
trustees should duly file their consent thereto. That consent having 
been given, we are led to the consideration of the third point. 

III. Whether the Legislature can rightfully amend or repeal the 
act of last February, without the assent of the trustees of the col- 
lege ? 

It is sufficient merely to state this proposition, to perceive the neces- 
sary answer. It is not to be presumed or admitted for a moment, 
that this act did not pass advisedly. The alteration in the charter, 
upon the assent of the trustees, became a new contract, equally bind- 
ing as the charter itself ; and the Legislature can no more interfere 
with it, and impair its obligation, than in any other case of vested 
rights, resting upon compact. It would be indelicate to presume that 
any such design could be in contemplation. It would be a plain and 
palpable breach of contract, and a violation of the constitution of the 
United States. 

JAMES KENT. 

Mew-York, JVovember 25, 1823. 



[Assembly, No. 213.] 



REPLY 

Of the Trustees of Union College, to the Opinion of the 

Attorney-General. 

To the Honorable the Legislature of the State of New-York : 

The trustees of Union College respecfully represent, that the report 
of the Attorney-General, on the controversy between the Regents of 
the University and the trustees of Union College, was withheld until 
so near the close of the session, that it was not in their power to com- 
municate the following remarks before the Legislature adjourned. 

Having at length procured that official document, they perceive 
that it is distinctly stated therein, that " with respect to the doctrines 
of the common law, in regard to the power of visitors and the man- 
ner in which they are to be exercised, there does not appear to be 
any important difference of opinion between the Regents and the trus- 
tees; and that they fully agree in the meaning of the terms visit and visi- 
tation used in the statute, provided those terms are to be considered 
as used in their technical and common law signification." They do 
not, however, perceive that it is as distinctly stated, that on this pre- 
cise point issue had been joined, and that its decision must decide the 
concroversy. And yet that so is the fact, will appear from the record- 
ed declaration of both the parties: — u The words visit and visitation 
the Regents (say they) have conceived to be used, not merely in their 
common acceptation, but being terms of known legal import and 
effect, to have been introduced into the statute with reference to their 
technical signification. The framers and revisers of the act well knew 
that at common law, all corporations were liable, as a necessary incident 
to their creation and existence, to be visited, in the technical acceptation 
of the term, and that the reason assigned for it in the books was, that as 
these bodies were composed of individuals subject to human frailties, and 
therefore apt to deviate from the ends of their institution, the law in 



68 [Assembly 

this mode provided proper persons to visit, inquire into and correct 
all irregularities that might arise in them."* 

" Whereas the trustees deny that they are visitors in this sense, even 
with respect to the course of education and system of discipline, so 
far as Union College is concerned."! 

Without deciding whether the trustees are or are not amenable to 
the Regents, as visitors, in the common law sense of the term, which 
had been claimed by the one party and disputed by the other, the 
report closes with the following comprehensive and apparently con- 
clusive words : " Upon the whole matter, therefore, the Attorney- 
General is of opinion, that the Regents have the right to inquire into 
the state of the funds of the college, and that the trustees of the col- 
lege, or other proper officers ought to answer such inquiries." 

To a person who had not read the documents submitted to the At- 
torney-General, it would naturally appear that the real question at 
issue was here met and decided, and that it was decided in favour of 
the Regents. Still the trustees are unable to perceive that the opin- 
ion here thus formally expressed, has any bearing whatever on the 
existing controversy. 

To what extent the Regents have the right to inquire into the state 
of Union College, whenever they shall visit it by themselves or by 
their committees, as the statute directs, has surely never yet been in 
dispute between the parties. The trustees of that institution have 
uniformly and cheerfully answered every inquiry thus addressed to 
them. And they should have been happy to have answered the Re- 
gents more fully, and more frequently, than it has been in their power 
to do, so seldom, of late, have their visits been performed. More 
than this: the trustees did even answer the inquiries respecting the 
state of their funds, addressed to them from Albany, in the manda- 
mus of the Regents, issued on the 24th March, 1823, though the 
manner of making those inquiries was offensive, and though the terms 
were replete with imputation: and that they did do this will be appa- 
rent by reading their replication addressed to the Regents, and their 
detailed report to the Legislature, to which the Regents were re- 
ferred. 

* Report of Regents, printed documents, p. 32. 
f Report of trustees, printed documents, p. 13. 



No. 213.] 69 

But though the trustees answered the inquiries thus addressed to 
them by the Regents, they admit that they accompanied that answer 
with a respectful, but explicit, avowal of their conviction, that the 
demand had been illegally made. And this they did, as they sup- 
posed, in conformity to the opinion of the Attorney-General, who, on 
being consulted, advised (as they understood him) to report as to the 
facts ; and since they questioned the right of the Regents to require 
such report, to accompany the same with their reasons for questioning 
that right ; and this they did do, and this is the extent of their of- 
fending. 

The real question in dispute, therefore, is, whether the Regents, 
without visiting the college at all, either by themselves or their com- 
mittees,have the right, as visitors in the common law sense of the term, 
to issue from the place of their sittings in Albany, their mandamus 
requiring the trustees to answer them in that place, at the time, and 
for the purposes, and in the terms, and to the extent set forth in that 
precept. At least this is certainly what both parties had supposed to 
be the real question in dispute. 

Hence the trustees, in commenting on this novel ', and as they con- 
ceived illegal measure, say, "It will be seen, by the mere inspection 
of the documents referred to, how far it was due to the trustees of ( 
Union College, they do not say, to request explanation or information, 
but to demand both) in the style in which both have been demanded 
during the entire term of eighteen years ; accompanying the demand 
with assertions and statements calculated to excite public alarm and 
destroy public confidence."* 

And hence the Regents, in defending this same measure, (after 
stating that a copy of their requisitions had been u duly served on the 
officers of the college," and that a communication had been received 
in reply, which, u after animadverting upon the facts and arguments 
adduced by the committee of the Regents, denies, in terms, the au- 
thority of this board to require the information called for by this 
board,") proceed to say, that " by the fair interpretation of the statute, 
the Regents have conceived their authority coextensive with the 
known technicai meaning of the terms in which it is conveyed, and 
equivalent to the powers of general visitors, at common law, except- 
ing in so far as those powers are restrained and qualified. * 

♦Report of trustees, printed documents, p. 13. 



70 [Assembly 

* * They conceived that the Legislature intended to establish 
in them sn authority of this nature, to be applied in all cases of en- 
dowment from the State, or from resources raised or contributed under 
its authority ; * * * * and they also conceived, that 
a case had presented itself, which called for the exercise of their 
powers, as an incumbent duty. Acting under these impressions, they 
have attempted to interfere on the occasion in the manner now in 
question." * 

And that the Regents fully understood that the manner in which 
they had attempted to interfere was in question, is still further appa- 
rent from the pains taken to impress the Legislature with a sense of 
its legality. " That the authority vested in the Regents" (say they) 
" is to be confined to mere personal visits, in the common acceptance 
of the word, by themselves or their committees, to all the colleges, 
academies, and schools in the State, or that the supposed limited 
power of legal visitation is to be exercised only in that mode, will 
not be seriously contended for by any who consider the end and ob- 
jects to be obtained by the exercise of the power ; who reflect upon 
the nature of the power itself, as recognized before the statute, or are 
aware of the practical construction of it, which has been adopted by 
this board. *.'**'-* For when, from the multipli- 

cation of these institutions, it became impracticable for the Regents to 
pay personal visits of inspection to all of them, by means of their 
committees, * * * * these personal visits of inspection 
were discontinued, and the spirit, if not the letter, of the law more 
effectually obeyed, by requiring annual reports to be forwarded by 
their trustees to this board. "f 

Such being the question at issue, according to the understanding of 
the parties, the trustees did expect that the Attorney General would 
either have pronounced this unexampled proceeding of the regents, 
which has occasioned the whole controversy, to have been illegal, or 
that he would have adduced some authorities, if any existed, to estab- 
lish its legality. He has not, however, so far as they can perceive, 
deemed it incumbent on him to do either: on the contrary, leaving 
this novel claim, set up by the Regents, undecided ; though it be the 
real claim and the only claim of theirs ever controverted by the trus- 
tees, he has been satisfied with merely declaring it as his opinion, 

♦Report of Regents, printed documents, p. 34. 
f Report of Regents, printed documents, p. 24. 



No. 213.] 71 

"that the Regents have the right to inquire into the state of the funds 
of the college." 

Without wishing, at this time, to controvert this right, which the 
Attorney General, as seems to the trustees, has substituted for dis- 
cussion and decision, in place of the right which they had heretofore 
deemed it their duty to controvert: and that it may not be thought 
that they have thus sought to avoid the further consideration of the 
subject altogether, they beg leave to mention a few of the instances 
in which they have not been able to perceive, either the relevancy or 
the conclusiveness of the arguments which have been thus collate- 
rally, and as appears to them gratuitously, adduced. 

The language of the 3d sec. of the Act to institute a University* 
passed 13th April, 1787, so far, says the attorney general, as it is now 
material, is as follows: " It shall be lawful to and for the said Re- 
gents, and they are hereby authorized and required to visit and in- 
spect all the colleges, academies and schools which are or may be 
established in this State; examine into the state and system of edu- 
cation and discipline therein, and make a yearly report thereof to the 
Legislature; and also to visit every college in this State, once a year, 
by themselves or by their committees, and yearly to report the state 
of the same to the Legislature." 

In reasoning on this section, the Attorney General arrives, by two 
different processes, at the same result, both of which processes ap- 
pear to the trustees irrelevant and inconclusive. His words are, 
" the records of the board of Regents, and their annual reports to the 
Legislature, show that they have, for a long time, (and it is believed 
they have, in fact, always,) claimed, and whenever they thought pro- 
per, exercised the right of inquiring, not only into the state and sys- 
tem of discipline and education, in the academies, but also into the 
state of their funds." 

" In the annual report made to the Legislature, in 1805, by the 
board of Regents, the Legislature are informed that the Regents have 
required annual returns from the different academies, according to a 
prescribed form, which enables them to exhibit at one view, the state 
of all the academies that have complied with the regulation; and that 
for the then last year, a statement was annexed to the annual report. 
This will be found to contain statement of the funds of those institu- 



72 [Assembly 

tions, real and personal, and of the annual income derived from those 
funds ? as well as from tuition. In the year 1813, the Honorable the 
Assembly, passed a resolution calling upon the Regenis to report to 
that House, among other things, the state of the several academies in 
the State; the number of students educated in the same respectively, 
and the funds belonging thereto. 

u It is believed that these transactions are sufficient to show the 
early and continued opinion of the Regents, the acquiescence of the 
academies, and the corroborating opinion of the Legislature, in favor 
of the right to make inquiries as to the funds belonging to those in- 
stitutions. And if so, then admitting the power of the Regents as to 
colleges, to be merely coextensive with that which they possess as to 
academies, the argument before alluded to, on which it has been con- 
tended that they are excluded from the right of inquiring into the 
funds of the colleges, fails at its foundation." — pp. 12, 13. 

Now on the mere reading of the foregoing section of the act of 13th 
April, 1787, quoted by the Attorney General, it is apparent, as seem 
to the trustees, that the language in which it is expressed is mandatory. 
Every thing, therefore, which the Regents are thereby authorized to 
inquire into and report on, they are commanded to inquire into and 
report on, and that annually. If, therefore, the first clause of this 
section authorised inquiries to be made into the fiscal concerns of aca- 
demies in 1805, it authorized this in 1787; and if it authorized this 
then^ it required this then; and required too that report thereof should 
be made yearly, and every year thereafter, to the Legislature. 

How is it then to be accounted for, that the fiscal state of acade- 
mies, which ought, (if the interpretation now contended for be cor- 
rect,) to have been not only inquired into but reported on annually by 
the Regents from 1787, should for the first time, have been reported 
on in the year 1805? Whence arose, at this late period this new 
feature in the administration of that board? No new rights or duties 
could have sprung up in 1805, under an act passed in 1787. Were 
the Regents themselves ignorant for near twenty years, of the extent 
of the powers conferred, and the duties imposed by the act which cre- 
ated them? 

That the Regents, in 1805, reported to the Legislature the fiscal 
state of academies, is admitted. But did they do this then and for 



No. 213.J 73 

the first time, by virtue of an act of 1787, or had some other and 
later act passed, vesting them with new trusts and imposing on them 
new duties with respect to academies, which trusts and duties did not 
extend to colleges ? 

The Attorney-General does not intimate that any such act had 
passed : nor do the Regents intimate this. On the contrary, both 
proceed in their argument as if the rights and duties of the Regents 
depended entirely on the construction to be given to the original act 
of 1787, in which act both colleges and academies are included. And 
yet it is the fact, that after 1787, and before 1805, a special act 
passed reposing' new trusts in the Regents, and requiring new duties 
of them with respect to academies, and with respect to academies only ; 
colleges and schools not being even named therein. 

Out of this special and more recent act, as appears to the trustees, 
has arisen this special and more recent procedure of the Regents with 
regard to academies, on whu h the Attorney-General rests with so 
much confidence this part of his argument. 

The special and more recent act alluded to, is an act for the encou- 
ragement of literature, passed 3d April, 1801; and the words of the 
material part of it are, u The managers aforesaid, after the drawing 
of each lottery, shall forthwith pay out of the net amount or avails 
thereof, the sum of twelve thousand five hundred dollars, to the Re- 
gents of the University of the State of New-York, for the purpose of 
being by them distributed among such and so many of the academies 
as now are or hereafter may be erected in this State, in such propor- 
tions and to be appropriated in such manner as they shall judge most 
beneficial for the several academies, and most advantageous to litera- 
ture." 

Now if it be not the case, that the requiring of fiscal returns in 
1805, after a prescribed form, and the annexing of a corresponding 
statement of revenues to their own annual report for that year, were 
both special acts performed by the Regents in consequence of the 
foregoing special statute, how happens it that both should be so ex- 
pressly and yet so unaccountably restricted to academies? Since, if 
those acts were performed, as the Attorney-General assumes that they 
were, in obedience to the clause of the section of the statute of 1787, 



74 [Assembly 

on which he is commenting, then ought they also to have been per- 
formed with respect to colleges as well as academies: nor could such 
an invidious distinction have been made without a manifest violation 
of duty, for every thing enjoined in that clause with respect to the 
owe institution, is enjoined and in the same express terms with respect 
to the other also. 

The Attorney-General proceeds: — " But to consider this matter in 
another point of view, suppose that the construction of the act by 
which it is said the Regents are excluded from all inquiry into the 
funds of academies, is, so far, correct ; still, the conclusion which has 
been drawn from it, that they can not inquire into the funds of colle- 
ges, is by no means a necessary inference. If the statute had stopped 
short, after enacting that the Regents should visit all colleges, acade- 
mies and schools, examine into the state and system of education, and 
discipline therein, and make a yearly report thereof to the Legisla- 
ture, there would have been better ground for contending that their 
power, as to colleges, could not extend beyond an inquiry into these 
enumerated subjects. But the very next clause of the same section 
proceeds to direct that they shall also visit every college in this State, 
once a year, by themselves or by their committees, and make a yearly 
report of the state of the same, to the Legislature. Now, unless 
this extends to something more than the mere state and system of 
education and discipline, which had been already provided for, in the 
next antecedent clause, then those who originally drew the act, those 
who first passed it, the subsequent revisers of the laws, the Legisla- 
tures which have repassed it at those subsequent revisions, have been 
content to encumber the statute book with useless and nugatory repe- 
tions." * * ■ * * " And to say that it needs nothing 
than that which preceded it, is to charge with voluntary tautology, 
all who have been concerned in drawing, passing, revising or repass- 
ing the act." — p. 13. 

Be it as the Attorney General asserts; still does it follow, that be- 
cause the latter clause of this section means something not meant by 
the former, that therefore that something must be not what is expres- 
sed in the clause itself, but what is not expressed in it, not even inti- 
mated in it, or in the section or in the statute; but which, neverthe- 
less, the argument of the commentator requires to be supplied. If so 5 
then he is consistent in supposing that an investigation of the pecunia- 



No. 213.] 75 

ry situation of the colleges is comprehended in the additional meaning 
of this latter clause. But let it be observed, that an ecclesiastic would 
be equally consistent in supposing that an investigation of the reli- 
gious belief of the college, or a politician in supposing that an inves- 
tigation of the political opinions of the college, was also comprehend- 
ed in it. 

Let the report speak for itself: "If this be so," continues the At- 
torney General, "then it remains to inquire whether the latter clause, 
at least, in the section, does not properly involve some investigation of 
the general concerns and pecuniary situation of the colleges which are 
certainly among the most important matters connected with the pros- 
perity and success of those institutions." * * * * 

* "Indeed, no full and fair view can be taken of the general state 
of such an institution, without some knowledge of the pecuniary 
means which it possesses, and upon which it must, more or less rely, 
for its continuance and support." * * * * * 

"A further reason for inquiry by the Regents, into the funds of the 
institutions under their supervision, grows out of the organization of 
the board itself." *##*#*#* 

The Legislature wisely considered the interests of science, as deser- 
ving its watchful and parental attention; and with a view to uphold 
and promote them, instituted this board of general supervision, in- 
tended to possess funds which have since, been in part bestowed up- 
on it, that in the contest between knowledge and ignorance, it might 
stand as a sort of corps de reserve on the field, having a general view 
of all operations, and ready to throw in its aid, at those points where 
it should be most wanted, and where it would be most likely to ensure 
such success as would be gratifying to the friends of science." 

* * "In order to determine where the public bounty can 
be most properly and effectually bestowed, to accomplish the purposes 
of the Legislature, it is necessary that the board which has the dis- 
pensation or it, should extend its inquiries beyond the state and sys- 
tem of education and discipline, in the several seminaries among 
which it is to be distributed." * * * * * 

* * "./? judicious distribution of the funds of the Regents, 
appropriated Jor such purposes, musty therefore, more or less> depend 
upon a knowledge of the fiscal concerns of the institutions who may be- 
come participators in the bounty." — p. 14. 



76 [Assembly 

To all this, as a matter of fancy and embellishment, the trustees 
have nothing to object. The considerations suggested why the clause 
in question should contain the enactment in question are plausible, but 
they are, nevertheless, nugatory, since in point of fact it does not con- 
tain it. And the idea of the Regents standing as a corps de reserve, 
in the field of controversy, between knowledge and ignorance, posses- 
sing funds, and ready to throw in their aid at those points where it 
should be most wanted, though agreeable, is a mere illusion, having 
no existence, as the trustees believe, so far as colleges are concerned, 
but in the mind that conceives it. Did the Attorney-General mean, 
when penning this argument, that it should be understood that the Re- 
gents did p.erform with respect to colleges the office here assigned 
them ? And that they were possessed of funds to be distributed 
among them in the manner here specified'? If he did not mean this, 
neither the beauty of the passage, nor the plausibility of the argument 
it insinuates, can justify its introduction into an official document. If 
he did mean this, much less can its introduction be justified, unless it 
be conformable to realities that exist elsewhere than on the page that 
contains it. 

The trustees are aware, though the Attorney-General has taken no 
notice of it, that the Regents have been entrusted by the State, as 
already mentioned, with funds to be distributed in the manner above 
stated, among academies. But academies are not included in the 
clause, the construction of which is under consideration ; nor is it 
with the rights of the Regents over academies, but with their less 
doubtful and more clearly extended right over colleges, that the ar- 
gument of the Attorney-General is concerned. And if it be the fact, 
as the reader of that argument must suppose it to be, that the Regents 
are also intrusted with funds for distribution, at their discretion, amon^ 
colleges; and that, " in order to determine where the public bounty 
can be most properly and effectually bestowed, it is necessary that the 
board, which has the dispensation of it, should extend its inquiries be- 
yond the state and system of education and discipline in the several 
seminaries among which it is to be distributed." If this be the fact, 
the trustees are ignorant of it, and can, therefore, only say, that the 
argument, which proceeds throughout, on the assumption of this fact, 
would have struck them as biing more relevant and conclusive had 
the Attorney-General stated the amount of the funds so entrusted to 
the Regents for distribution among colleges ; by whom they were be- 



No. 213.1 77 

stowed; what particular benefactions were in contemplation, with 
reference to which, as seems to be intimated, their mandamus to Un- 
ion College was issued, and where the statute can be found that has 
made, in behalf of colleges, these benign and salutary provisions 
which form the basis on which this whole reasoning appears so se- 
curely to rest. 

But though this information were not reeded, and though the ar- 
gument of the Attorney-General for his favorite construction of the 
clause under consideration, were better supported by facts, than for 
the want of such information it appears to be, still, as would seem to 
the trustees, before the construction contended for by him, or any 
other conjectural construction can be resorted to, there is a previous 
question to settle, to wit : Does this latter clause enact any thing in 
terms, not enacted in the former clause ? 4 n d if it does, what is it 
that it thus enacts ? 

By adverting to the section under consideration, it will be apparent 
that the former clause enacts, that the Regents " visit and inspect all 
the colleges, academies and schools, which are or may be established in 
this State; examine into the state and system of education and disci- 
pline therein, and make a yearly report thereof to the Legislature" 

Though the right and the duty of visiting are here specified, nei- 
ther the manner, nor the frequency of visiting are prescribed ; where- 
as the latter clause, (the words of which are, " And also to visit every 
college in this State once a year, by themselves, or by their committees, 
and yearly report the state of the same to the Legislature") in terms 
prescribes both. Two distinct enactments are therefore contained ex- 
pressly in this latter clause, which are not contained in the former, to 
wit : that the prescribed visit shall be made to every college in this 
State ONCE A YEAR, and that it shall be a personal visit made by 
THE REGENTS OR BY THEIR COMMITTEES. Now it ap- 
pears to the trustees that these two enactments, neither of which, cer- 
tainly, are contained in the former clause, and both of which certain- 
ly are contained in the latter ; are sufficient to save from the imputa- 
tion of " voluntary tautology" both the framers and revisers of this 
statute, without the expedient of supplying any gratuitous and con- 
jectural meaning. And that it formerly appeared thus to the Regents 
themselves, is evident from the fact, that they continued to visit the 
colleges, annually, by their committess, even after the special act of 



78 [Assembly 

1801, already referred to, had passed, and after they had under its 
authority required annual returns to be made by academies according 
to a prescribed form : and even after they had ceased altogether to 
visit, annually, the colleges, they still continued for years, to evince 
their convictions as to the construction of this clause by annually ap- 
pointing under it, for the several colleges, committees of visitation. 

The Attorney-General admits that "If the statute had stopped 
short after enacting that the Regents should visit all colleges, acade- 
mies and schools, examine into the state and system of education and 
discipline therein, and make a yearly report thereof to the Legisla- 
ture there would have been better grounds for contending that their 
power, as to colleges, could not extend beyond an inquiry into these 
enumerated subjects. But the very next clause of the same section 
proceeds to direct, that they shall also visit evtry co'lege in this State 
once a year, by themselves or by their committees, and make a year- 
ly report of the state ol the same to the Legislature. 

But for this latter clause then, the Attorney-General being judge, 
the right of the Regents to inquire beyond the foregoing enumerated 
subjects, would be less clear than it is. This latter clause, however 
relates exclusively to colleges ; and yet the Regents, executing a trust 
under both clauses, require, as early as 1805, fiscal reports from acad- 
emies, which are not comprehended in the latter clause, and where 
their right (according to the doctrine of the Attorney- General) to do 
this is therefore less clear, and they neglect until 1823, to require fis- 
cal reports of colleges which are comprehended in the latter clause, 
and where their right to make such requisition is therefore more clear. 

Again: if it be the right of the Regents, under this latter clause, to 
require of the several colleges fiscal reports, then is it their duty to 
require them, for the language is not permissive but mandatory. And 
if it be their duty to require of the college fiscal reports, then is it 
their duty to make, with respect to the colleges, to the Legislature 
fiscal reports; for all they are authorized to inquire into, they are di- 
rected to report upon. If, therefore, the construction for which the 
Attorney- General contends, with so much zeal and ability, be the true 
construction, then it has been the bounden duty of the Regents, ever 
since 1787, to have made yearly and every year a report to the Leg- 
islature, concerning the fiscal condition of every college in this State; 



No. 213.] 79 

and yet, though they have yearly and every year, as will appear by the 
journals of the two houses, reported the system of education and dis- * 
cipline in the said colleges, they have not at the expiration of near 
forty years, even begun to report annually the financial state of these 
institutions, so long since entrusted to their care. 

Since, therefore, the Regents themselves have so long and so uni- 
formly put the same construction on this clause which the trustees 
now put upon it, they trust that they shall not be deemed to be with- 
out apology, even though they should be deemed to be in error. For 
if it has required so many years for the Regents, enrolling on the 
catalogue of their members many of the brightest ornaments that have 
adorned either the bench or the bar of the State; to arrive at the novel 
construction recently discovered; it ought not to be expected that the 
trustees of Union College, a corporation signalized by no such assem- 
blage of legal talent, should arrive at the same result by a readier 
process or in a shorter time. 

In concluding, the trustees would only remark, that they are aware 
that they are parties, and as such liable to bias. But they are also 
aware that the Regents and the Attorney-General, (who is a Regent) 
are likewise parties and therefore liable to the like infirmity; and without 
meaning any disrespect, they think it may be said, that the opinion of 
that officer, (who had become a party before the documents were sub- 
mitted to him") drawn up on the present occasion and under the influ- 
ence of existing prepossessions, is entitled to less confidence and 
ought to be received with greater caution than would be due to it on 
a different question and under other circumstances. And especially 
may this be said since it is well known that the Regents themselves 
are materially divided on the subjeet. Several of the oldest, of the 
ablest, antl most distinguished lawyers and statesmen, now belonging 
to that board, have not only held, but regardless of interest and influ- 
ence, have had the independence and the magnanimity to avow a di- 
rectly contrary opinion. In which contrary opinion they have been 
supported not only by the concurrence of the former Chancellor 
and Judges, but also by the concurrence of many and, so far as the 
trustees have been able to learn, by the concurrence of all the numer- 
ous and distinguished individuals who once held but have now relin- 
quished their seats in that board. 

With respect to the repeal of the act of 14th February, 1823, 
which appears to have been so presented in this report as to invite a 



80 [Assembly 

second reference, and to prepare the way for a second and more satis- 
, factory expression of opinion, the trustees beg leave to say, that it 
• appears to them that the Attorney-General has removed the only 'pre- 
text on which the original argument of the Regents, in favour of the 
repeal of said act, was founded. 

They say expressly in their mandamus, u That the number of elec- 
tive trustees has not as yet been reduced to ten: and because it has 
not, that the effect of the law in question " is to prevent the possibility 
of the ex officio trustees ever forming a majority of the board, 
* # # * * * and deprive the State of all effici- 
ent influence and control, in the direct management of the institution." 

The Attorney-General says " It is due, however, to the college to 
say, that since the present reference, the treasurer of that institution 
has informed the Attorney-General, that the number of elective trus- 
tees had been reduced to ten, and has given him a list of names 
amounting to ten." 

Now if this be due to the college, with what reason and for what 
object is this part of the controversy continued? And why has the 
-Attorney-General, since he was informed of this, evinced the same 
personal solicitude that the act should be repealed that he before 
evinced'? If it be not true in point of fact as the Regents have stated, 
that the effect of the passage of the law in question, u is to prevent 
the possibility of the ex officio trustees ever forming a majority of the 
boardV If, on the contrary, the reverse of this be true; if it be true 
that before this act was passed, the ex officio trustees had been by the 
reduction of the number of judges, under the new constitution, re- 
duced to a minority; and if it be true, that the passage of this act, 
by substituting in the place of the two former judges, the Governor 
and Lieutenant Governor, has actually restored to the ex officio trus- 
tees their former majority, and if it be also true, that if this act 
were now to be repealed, the ex officio trustees would by such repeal 
be again reduced to a minority, with what consistency is its repeal 
still pressed upon the Legislature? Since it is not to be questioned 
that the Regents truly stated the reason which induced them to re- 
commend this measure, and since it is at length apparent that the rea- 
son stated has no existence, how is it to be accounted for that the 
measure itself should notwithstanding be persisted in? 



No. 213.] 81 

It is no longer pretended that the passage of this law has taken 
any thing from the ex officio trustees; on the contrary, it is admitted 
that its repeal would do this, and that the Regents and not the college 
are to be the party benefited; and benefited contrary to the solemn 
stipulation of the Legislature made March 30th, 1805. In such a 
complete reverse of circumstances, and when the 'precise evil is to be 
produced by this measure which the Regents appeared to be so anx- 
ious to prevent; and when, should it be carried, they will themselves ', 
wrest from the state the very advantage which they were at first so 
desirous that the State should retain, it is certainly surprising, that the 
members of that board should be now as formerly ', its most zealous 
advocates. 

With respect to the rights of the Legislature to repeal this act, 
which the Attorney General has argued at large in his second com- 
munication, the trustees will not in this place make a single remark. 
For though they apprehend that the opinion so confidently expressed, 
is as unsound in point of law, as the representation of circumstances 
on which it is founded, appears to be partial and distorted in point of 
fact, they do not wish even to agitate that question. 

The trustees have never expressed any peculiar partiality for the 
provisions of that act. At the commencement of this controversy 
they proffered to the Regents to waive its protection, and to refer the 
whole case to the Chancellor and Judges, and they are still willing to 
make and to abide such reference. 

That the compact entered into between the trustees and the State, 
under the act of March 30th, 1805, has been violated on the part of 
the State, by the practical operation of the new constitution, will not, 
it is believed, be denied by any impartial man. Nor w T ill it be de- 
nied, that good faith required that some new and satisfactory provis- 
ion should be made, to prevent the evils liable to result from such 
violation . And though the provisions contained in the act in ques- 
tion, have been deemed by the trustees satisfactory; and though not- 
withstanding the Attorney General questions it, they have accepted 
the same, they are by no means tenacious on this subject. If any 
other and satisfactory substitute can be devised, that will be more 
acceptable to the Legislature, the trustees shall cheerfully acquiesce 
in it. 

[Assembly, No. 213.] 6 



82 [Assembly 

But that the repeal of this act should have been introduced into 
both houses of the Legislature, by a special communication from the 
Regents, setting forth, in error as is now admitted, the operation 
thereof, and grounding the necessity of its repeal on the pretence that 
its effect, contrary to the intention of the Legislature in passing it^ 
would be u to prev:nt the possibility of the ex officio trustees ever form- 
ing a majority of the board" And that after this unjust and injuri- 
ous statement had been recorded on the journals, published in the pa- 
pers, and permitted to operate uncontradicted on the Legislature and 
en the public for a year; that the Attorney General though repeatedly 
requested by the trustees to make his report early in the session, 
should, notwithstanding, so delay it as to bring up the question a 
second time, amid the hurry that precedes adjournment; and that the 
personal influence of that officer, should be brought to bear upon the ^ 
question with as much zeal as if it were not now known that the rea- 
sons originally assigned, were founded in mistake; that all this should 
have taken place, has indeed excited the surprise and regret of the 
trustees. 

And though they have no objection to any new and equitable ar- 
rangement that may be either now or hereafter substituted, they have 
considered the repeated attempts which have been made to induce 
the repeal of the act in question, at the times, and in the manner, and 
under the pretence already alluded to, to be equally injurious and 
unjust; and they flatter themselves that the Legislature, as well as 
every honorable and unbiassed member of that community they re- 
present, will admit that they have not without reason so considered it. 

All which is respectfully submitted m behalf of the trustees, by 

ELIPH'T NOTT, 



(A.) 

APPENDIX, 

Containing the material facts relative to the acceptance 
of the condition of the act of February 14th, 1823. 

At a meeting of the board of trustees, held July 21st 1812, a reso- 
lution was passed in the following words; 

" Resolved , That the president of this board be authorized to make 
application for the purpose of reducing the number of trustees, ne- 
cessary to make a board for the transaction of business, to the num- 
ber of eleven, and also to be reinvested with the power of electing 
their successors in office." 

At a meeting of the board of trustees of Union College, held the 
23d day of July, 1822, a quorum being present, a resolution in the 
following words was passed: % 

" llesolvedj That the trustees resident in Schenectady, when con- 
vened together with such as may be present from abroad, be and they 
are hereby invested with full powers to transact all the business of 
the institution, that may require to be transacted at any time when 
this board is not in actual session, as fully and effectually as the same 
could be transacted by the board itself." 

At a meeting of the trustees resident in Schenectady, held 9th day 
of April, 1823, conformably to the above resolution of the board, the 
following resolution was adopted: 

" Whereas a resolution has been passed by the board of trustees, 
authorizing application to be made to the Legislature, for restoring the 
right of filling vacancies which had been voluntarily relinquished: 



84 [Assembly 

and whereas a law has been passed, February 14th, 1823, proffering 
such restoration — 

" Therefore, Resolved, That the treasurer make out, in form, the 
acceptance of the board of trustees, and having affixed the seal and 
procured the signature of the president thereunto, that he cause the 
same to be filed in the office of the Secretary of this State, as the 
law directs." 

s 

Conformably to the foregoing resolution, an acceptance was made 
out and filed on the 11th day of April, 1823, in the words and figures 
following, to wit: 

" Whereas, by the last section of the act, entitled 4 An act to amend 
an act, entitled an act relative to the city of Schenectady,' passed 
February 14th, 1823, it was recited and enacted as follows: 'Where- 
as, by the existing charter of Union College, the Chancellor, the 
judges of the supreme court, the Attorney General, the Secretary, 
the Comptroller, the Surveyor General, and the Treasurer, are ex 
officio, trustees thereof — And whereas, by reducing the number of the 
justices of the supreme court, under the present constitution, the num- 
ber of said trustees will be reduced — Therefore, 

c Be it enacted, that the Governor and Lieutenant Governor, for 
the time being, shall be added to the number of trustees, ex officio, 
already belonging thereunto: the trustees not ex officio, to be and re- 
main the same in number as they at present exist in said board, aad 
vacancies hereafter accruing therein, to be filled in the same manner 
as vacancies have heretofore been filled: Provided, the board of trus- 
tees of said college shall consent thereunto, and file such consent in 
the office of the Secretary of this State.' 

66 Now, therefore, know all men by these presents, that the said 
board of trustees of Union College have accepted, and do hereby ac- 
cept the conditions of the said act as above recited, and in evidence 
thereof the seal of the board has been affixed to this their acceptance, 
and the same caused to be filed in the office of the Secretary of this 
State, 

(L. S.) ALEX. PROUDFIT, 

President" 



No. 213.] 85 

At a meeting of the trustees of Union College, held July 22, 1823, 
at which meeting nine members were present, the Governor and Lieut. 
Governor being two of them : 

" Read the report of the resident trustees — Resolved, That the 
same be accepted, ratified, and entered on the minutes." 

The report was in the following words: — " The resident trustees 
report, that whereas a resolution was passed by the board of trustees, 
authorising an application to be made to the Legislature, for the re- 
storing of the right of filing vacancies therein, which right had here- 
tofore been voluntarily relinquished ; and whereas an act was passed 
by the Legislature, February 14, 1823, proffering such restoration, 
that they directed the treasurer to make out, in behalf of the board, 
their acceptance, and having affixed the seal and procured the signa- 
ture of the president thereunto, to cause the same to be filed in the 
office of the Secretary of this State, as the act directs, which was 
done accordingly." 

Conformably to the foregoing ratification, a certificate was filed in 
the office of the Secretary of this State, on the 10th of December, 
1823, in the words following: 

" Whereas a committee was heretofore appointed by the board of 
trustees of Union College, to procure a reinvestment in said board of 
the right of filing vacancies therein, which right had been voluntarily 
surrendered to the Regents of the University ; and whereas an act 
was passed February 14, 1823, by the Legislature of the State of 
New-York, proffering to said board the restoration of said right, on 
the conditions therein contained; and whereas the trustees resident in 
Schenectady, did, by virtue of authority previously vested in them by 
the said board of trustees, accept, in their behalf, of the conditions 
of said act, and did cause said acceptance to be filed in the office of 
the Secretary of this State, and did make report thereof to the said 
board of trustees of Union College, at their meeting July 23, 1823- 
and whereas it was thereupon resolved, by said board of trustees, to ac- 
cept and ratify said report of the resident trustees and the acts therein 
set forth, 

" Now, therefore, and in evidence of the acceptance of the condi- 
tions of said act of February 14, 1823, by the trustees of Union 



86 [Assembly 

College, as set forth in said certificate already filed, and which has 
been sealed with the seal of said board, signed by the president 
thereof, and directed to be filed in the office the Secretary of this 
State as said act directs. 

(L. S.) ALEX. PROUDFIT, 

President of the Board." 
Schenectady, July 23, 1823. 

The foregoing is believed to be a correct statement of the whole 
proceedings had in relation to the act of February 14, 1823. 



(B.) 
Extracts additional from the report of Gov. Marcy, &c. 

On the 13 of April, 1814, ( Vol. 3, Laws N. Y. (b) p. 142, sess. 27.) 
an act instituting a lottery, for the promotion of literature, was passed; 
in which $200,000 was granted to Union College; $40,000 to Ham- 
ilton College; $4,000 to the African Asbury Church; $30,000 to the 
College of Physicians and Surgeons, together with the interest there- 
on for six years; in which time it was contemplated that the same 
would be drawn and paid. And in and by another act, passed April 
15th, 1814, (Vol. 3, (6) p. 257,) for the payment of certain officers 
of government , an additional sum of $12,000 was authorised to be 
raised in the same lottery, for the Historical Society. 

On the 5th of April 1822, {Vol. 6, (a) pp. 157,) an act was passed 
to limit the continuance of lotteries ; in and by which the institutions 
interested in the aforesaid lotteries, were authorized to assume the man- 
agement of the aforesaid lotteries, and to receive the avails thereof 
in lieu of the grants made to them, provided they would consent to 
do so for a term of years less than the State would require for draw- 
ing said lottery, and at an average sale of tickets annually, not ex- 
ceeding in amout the average amount of sales during the last preceding 
five years ; both the time and amount to be fixed by certificates of the 
Comptroller, to be filed in the office of the Secretary of State. (§ 19)* 

On the 9th April, 1822, the Comptroller (§46) filed his certificate 
fixing the time the State would require for drawing said lotteries. 

On the 24th July, 1822, a resolution (§27) of the trustees of Union 
College was passed as follows, to wit : Resolved, That the treasurer of 
this board be authorized by and with ihe consent of the President of the 
college, to accept, under the seal of this board, of the provisions of the 
act to limit the continuance of lotteries, passed April 5th, 1822. And 

*See printed documents, corresponding number, 

[Assembly, No. 213,] 7 



88 [Assembly i 

that the said treasurer be further authorized, under the seal of this 
board, to assume such responsibilities, and to give and take such se- 
curities, and to make such contracts relative to the lottery instituted 
for the promotion of literature or any part thereof, and to pledge or 
alienate such property belonging to this board, in carrying the seme 
into effect, as the President of the college shall approve ; to whose 
supervision the same is hereby committed, with authority to exercise, 
in behalf of this institution, all those powers vesting in it by virtue 
of the aforesaid act to limit the continuance of lotteries. 

On the 29th July, 1822, a contract (§29) was signed between J. B. 
Yates and Archibald Mclntyre, and the trustees of Union College. 
By which contract Yates and Mclntyre were, (in addition to two and 
one-fourth percentage on the gross amount of schemes, to be deposit- 
ed to the credit of the President of the college, being the legal per 
centage allowed for the management of the lotteries,) to pay to the 
treasurer of the college for the lottery, the sum of $276,090.14-100; 
the same to be paid, if preferred by Yates and Mclntyre, in ten equal 
annuities, of $39,312 each, on which a rebate of interest was to take 
place if paid in advance. 

In a letter dated January, 4, 1826, (§ 80) (but which is stated to 
have been subsequently written for the purpose of embodying in a 
written form, what passed at a personal inserview, held at Schectady 
on that day, between J. B. Yates, Henry Yates and Eliphalet Nott,) 
the contractors make known their perilous condition, request aid to the 
amount of $100,000 at once, and further sums thereafter, and proffer, 
in case it should be furnished them, to pay 11 per cent, on the classes, 
as the president had previously insisted they were bound to do. 

This proffer was, at the time, verbally accepted by the president, 
who, in full view of the danger, appears to have deliberately made 
up his mind to incur the hazard necessary to prevent the fail- 
ure of Y. & Mel. and the consequent ruin which such failure must 
bring upon the college. 

On the 17th January, 1826, (§ 84) Mr.. J. B. Yates mites from 
New-York, that if sustained, they can pay all — that he and Mr. Mc- 
lntyre have looked over the memorandum sent by the president, find 
nothing amiss in it, and will write an agreement pursuant thereto. 



No. 213.] 89 

On the 23d Jan. 1826, (§ 86) Mr. Mclntyre expresses in a letter 
his gratitude to the president for the prompt relief afforded them, and 
requests the presence and advice ol Mr. H. Yates the treasurer of 
the college. He also forwarded a copy of bill for consolidating the 
lotteries, conformably to the purpose stated by Mr. J. B. Yates at the 
preceding interview. 

On the same day, Mr. J. B. Yates makes a similar request, by let- 
ter, in relation to the treasurer of the college. (§ 90.) 

In consequence of the requests contained in the above letters, and 
for the express purpose of guarding more effectually the rights, and 
furthering the interests of Union College, the president employed, as 
he states, Mr. Henry Yates, the treasurer and clerk of the board, and 
soon thereafter a trustee, to go to New- York, as agent of the college, 
and to remain there as much of the time as practicable, until the 
close of the Literature Lottery. (§ 91.) And agreed to continue to 
pay the treasurer during his absence, (besides his salary as treasurer 
and clerk, which he retained,) the sum of $1,300 per annum, out of 
the funds of the college, and also to pay his travelling expenses &c. 
while absent. 

From a bill in chancery, recently filed by A. Mclntyre and others, 
it appears (§ 93) that the treasurer of Union College, on going to 
New-York, entered into partnership with Yates & Mclntyre, as early 
as July 1st, 1826. Your committee have inquired how far the presi- 
dent had knowledge and assented to this proceeding of the treasurer; 
and in reply have been informed that it was wholly without his privi- 
ty, and that for a long time he remained in ignorance of it. 

In fulfilment of the engagements made by the president of Union 
College, (^ 97) in consideration of the foregoing stipulations, he did, 
in connexion with the treasurer, obtain (for the sole use of Yates & 
Mclntyre,) from Wm. James, Esq. deceased, his notes to the amount 
of one hundred thousand dollars, for which, (in addition to a pledge 
of property belonging to the college,) the president and treasurer 
gave their own individual bond of indemnity for the entire amount, 
and the president did also in like manner, on or about the 15th Feb. 
1826, contribute towards securing the payment of a loan $40,000, 
made by T. J. Oakley and others, to Yates & Mclntyre, by hypothe- 
cating, (in addition to the bond of the college, which was not deemed 



90 [Assembly 

sufficient,) as collateral security, bank stock standing in his own name 
and in that of his wife, together with certain bonds and mortgages, 
as follows : 179 shares in the Mohawk Bank : 20 shares in the New- 
York State Bank ; 67 full shares in the Farmers' Bank ; 176 # do. on 
which $40 each had been paid 5 2 shares in the Albany Bank ; 17 
shares in the Manhattan Company, and 150 shares in the Rensselaer 
and Saratoga Insurance Company ; also, $7,000 worth of bonds and 
mortgages. 

On the 28th April, 1832, H. Yates, J. Ely, Jr. and James Mclntyre, 
addressed a letter (§485) to the president of UnionlCollege, declaring 
their intention not to ?nake any further payments to him^ but to give 
the per centage, to which he was entitled by stipulation, to J. B. 
Yates and Archibald Mclntyre, 

After the contractors ceased their payments, the president remon- 
strated with them by letter, but their answer being a definite refusal, 
he proceeded under the advice of the financial committee, with w T hom 
he had consulted, and by whose advice he had been governed through- 
out, to file a bill in chancery, in which this board are joined as com- 
plainants. 

The committee have deemed it necessary to present this general 
view of the whole ground, the better to enable the trustees to act 
upon the paper addressed to the board on the 21st of July last, by 
Messrs. Yates & Mclntyre. 

From the best reflection your committee have been able to give this 
subject, they can not perceive any just ground for questioning the 
validity of any of the contracts or stipulations under which. the parties 
have acted. 

That the trustees designed to clothe the president of the college 
with plenary powers, to act in their behalf in all cases, upon this 
subject, while the resolution remained unmodified, is obvious to your 
committee from the broad terms employed. And that this power was 
thus conferred, your committee entertain no doubt. 

That the contractors so understood it, is evident from the contracts 
and stipulations by them made from time to time with the president, 
most of which were entered into on their urgent application. 



* 



No. 213.] 91 

That the contracts and stipulations have in good faith been per- 
formed on the part of the president and of college, is not denied by 
the contractors. 

That as the fruits of these contracts immense profits have been 
realized by the contractors, seems apparent from their own state- 
ment, furnished to the college and contained in the printed documents- 

And now that these benefits have been realized by them, your 
committee have been unable to discover upon what grounds of law or 
equity, the contractors can, on their part, refuse to fulfil their own 
stipulations. 

In view of all the preceding facts, it has appeared to your com- 

mitteee — - 

1. That the embarrassments of Messrs. Yates & Mclntyre, according 
to their own statements, arose from speculations entered into by them, 
apart from the lottery business, and wholly unconnected with Union 
College. 

2. That such was the nature and extent of their embarrassments, 
that they would have been ruined, but for the timely and efficient and 
continued aid afforded them by the president of the college. 

3. That the contracts made by them with the president, were upon 
adequate and full consideration; and that the frequent changes com- 
plained of by Yates & Mclntyre, were in fact made at their urgent 
request; and that the repeated modifications have invariably been in 
their own favor. 

4. That the president has furnished extensive means, performed 
important services, and run great personal hazards, for the contractors 
on their repeated applications, and this evidently without any sinister 
motive, without the design of personal gain; but for the sole purpose 
of aiding the contractors, and of securing and advancing the interests 
of Union College, or some kindred institution connected therewith. 

In conclusion — it has appeared to your committee that Messrs. 
Yates & Mclntyre have received the benefits of a steady and faithful 
performance of these contracts, and that the interests of thecolh geand 
of science, as well as the claims of justice, require that the trustees 
should unite with the president in the proceedings which have been 



92 [Assembly 

commenced, or which may become necessary and proper, to obtain a 
full performance on the part of Yates & Mclntyre. 

That the course of the president throughout all the novel and diffi- 
cult emergencies which have occurred in conducting this whole busi- 
ness, has been marked by fairness and liberality towards the contrac- 
tors, and by firmness, sagacity, and disinterested zeal for the interests 
of the college and of education. 

That the full powers with which he was invested by the trustees, 
have been exercised with wisdom and success; and from the informa- 
tion they have received of his views in relation to this whole subject, 
your committee are of opinion that the interest of the college and of 
science require that these plenary powers should be continued. 

Your committee, therefore, recommend, that the Finance Committee 
be instructed to take the charge and supervision, of all suits with 
the contractors, in which this board is a party, now pending, or which 
may hereafter be instituted, or by them be judged necessary for as- 
serting or maintaining the rights of Union College, with authority to 
employ such professional aid as may by them be deemed proper, and 
that they be authorized to draw on the treasurer for the expenses 
which may be incurred in the premises. 

Your committee further recommend, that the present treasurer of 
College be authorized, by and with the advice of the financial com- 
mittee, to perform hereafter, in any transactions springing out of the 
supervision of the lotteries, all the acts that the former treasurer was 
authorized to perform. That by and with the advice of the financial 
committee, he receive from the president any bonds and mortgages, or 
other property; taken by him during the supervision of said lotter- 
ies; and co-operate with him as far as may be, in the investment and 
management of any funds that have been or may be hereafter receiv- 
ed by him in consideration of personal services rendered and hazards 
run; but which funds are intended for the ultimate benefit of Union 
College, or some kindred institution connected therewith. 
All which is respectfully submitted. 

W.. L. MARCY, ) 

SILAS WRIGHT, Jr. > tommitttee. 

JOHN P.. CUSHMAN. ) 



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No. 213. | 93 

The undersigned further states, 

That in order to enable the Regents the better to decide how far 
the imputed fiscal delinquencies aforesaid have been deserved, the 
entire report of the special committee appointed to examine the facts 
of the case, is subjoined, together with the documentary evi- 
dence in relation thereto; comprehending the entire correspondence 
of the parties concerned to which is appended the letter of the Hon. 
Silas Wright, after having, as trustee examined the same. 
All which is respectfully submitted. 

ALEX. HOLLAND, Treasurer. 

Union College, April 10, 1849 




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